Citation Nr: 21065818 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-50 821 DATE: October 27, 2021 REMANDED Entitlement to service connection for a back condition is remanded. Entitlement to service connection for headaches is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected right knee patellofemoral pain syndrome with tendonitis strain (right knee condition) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 2008 to July 2008, and from June 2009 to May 2010, with additional service in the Naval Reserve. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions, dated February 2013 and June 2014, issued by a Department of Veterans Affairs (VA) regional office. In June 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See June 2021 Board Hearing Transcript. As an initial matter, the Board notes that the issues of entitlement to service connection for left knee and ankle conditions were denied in the February 2013 rating decision. An appeal of such denials was perfected along with the claims currently before the Board. However, during the pendency of the appeal, the Veteran was granted service connection for such conditions in a July 2019 rating decision, which represents a grant of the benefits sought on appeal. As such, there remains no case or controversy, or dispute of fact, regarding the issues of entitlement to service connection for left knee and ankle conditions, and such issues will not be addressed herein. 1. Entitlement to service connection for a back condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to conduct additional development. First, the evidence indicates that there may be relevant treatment records, of which VA is aware, that are not associated with the claims file. Specifically, the record indicates that the Veteran has received treatment within the South Texas VA Healthcare System (VAHCS) and the Texas Valley Costal Bend (VCB) VAHCS. However, no records relating to such treatment have been associated with the claims file for periods spanning November 2010 through September 2012, March 2014 through February 2016, and July 2017 through August 2020. See South Texas VAHCS records, received February 2013 in CAPRI; Texas VCB VAHCS records, received January 2014, June 2014, September 2017, and September 2020. Additionally, the record indicates that the Veteran has received private treatment from Dr. R. Dhar; however, no records relating to treatment after April 2013 have been associated with the claims file. See Dr. R. Dhar records, received July 2013, August 2013, April 2014, and March 2015. As such, a remand is necessary to allow the AOJ to obtain and associate relevant VA and private treatment records with the claims file. See 38 U.S.C. §§ 5103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); Bell v. Derwinski, 2 Vet. App. 611 (1992). Second, the evidence indicates that there may be pertinent service records that are not associated with the claims file. Specifically, the record indicates that the Veteran has served in the Naval Reserve. See June 2021 Board Hearing Transcript. However, no records relating to such service have been associated with the claims file. Additionally, the Veteran's service treatment records (STRs) have been submitted by the Veteran in excerpts. See STR-Medical, received June 2012, January 2014, April 2014. As there is a possibility that pertinent service records are extant and not associated with the claims file, a remand is necessary to allow the AOJ to obtain and associate such records with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Third, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed back condition. In May 2014, the Veteran was afforded a VA examination in which the examiner noted a diagnosis of intervertebral disc syndrome (IVDS). However, no etiological opinion was provided. See May 2014 VA Back Conditions Disability Benefits Questionnaire (DBQ). As such, the Board finds the May 2014 VA examination to be inadequate to the extent that it did not provide an etiological opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). In July 2019, the Veteran was afforded a VA examination in which the examiner noted a diagnosis of IVDS. The examiner ultimately opined that the Veteran's claimed back condition was not caused or aggravated by his service-connected right knee and right ankle conditions. With respect to causation, the examiner noted that there was no current diagnosis of lower back pain, and therefore, no nexus was established. See July 2019 VA Back Conditions DBQ; July 2019 VA Medical Opinion DBQ. The Board finds this to be internally inconsistent with the examiner's finding of a diagnosis of IVDS, and therefore inadequate with respect to service connection on a secondary basis based on causation. With respect to aggravation, the examiner noted that there was no evidence of complaints of or treatment for back pain at the time of his in-service injury, and back pain was not noted in the Veteran's medical records until 2013. See id. However, the lack of documented complaints, standing alone, is not an adequate basis for a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Moreover, while whether the Veteran's claimed back condition manifested with symptomatology during service may be relevant in determining whether the Veteran's claimed back condition is related to his active duty service on a direct basis, it is not relevant in determining whether it was aggravated by a service-connected condition. As the examiner essentially did not provide a rationale relevant to the conclusion that the Veteran's claimed back condition was not aggravated by a service-connected condition, the Board finds the opinion to be inadequate with respect to service connection on a secondary basis based on causation. See Stefl v. Nicholson, 21 Vet. App. 102 (2007); Nieves-Rodriguez v. Peake, supra. Additionally, the July 2019 examiner did not provide an etiological opinion with respect to service connection on a direct basis. Therefore, the Board finds the examination to be inadequate to the extent it did not provide such opinion. See Nieves-Rodriguez v. Peake, supra; Monzingo v. Shinseki, supra. Lastly, as discussed above, potentially relevant service and treatment records have not been associated with the claims file. As such, the May 2014 and July 2019 examinations are inadequate as the respective examiners were unable to consider the Veteran's medical history. See Stefl v. Nicholson, supra. For these reasons, the Board finds the May 2014 and July 2019 VA opinions to be inadequate for adjudication purposes. As such, a remand is necessary to obtain an adequate opinion regarding the nature and etiology of the Veteran's claimed back condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to service connection for headaches is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is necessary to allow the AOJ to obtain the Veteran's service records, as well as pertinent VA and private treatment records. See 38 U.S.C. §§ 5103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Ivey v. Derwinski, supra; Bell v. Derwinski, supra. Second, a remand is necessary to afford the Veteran with an adequate examination regarding the nature and etiology of his claimed headache condition. In May 2014, the Veteran was afforded a VA examination regarding his claimed headache condition. See May 2014 VA Headaches DBQ. However, as discussed above, potentially relevant service and treatment records have not been associated with the claims file. As such, the May 2014 VA examination is inadequate as the examiner was unable to consider the Veteran's medical history and, therefore, a remand is necessary to afford the Veteran an adequate examination regarding his claimed headache condition. See Stefl v. Nicholson, supra; Barr v. Nicholson, supra. 3. Entitlement to an initial rating in excess of 10 percent for service-connected right knee condition is remanded. The Board regrets the delay associated with this remand. However, based on a review of the evidence of record, the Board finds that a remand is necessary to allow the AOJ to conduct additional development. First, as discussed above, a remand is necessary to allow the AOJ to obtain the Veteran's service records, as well as pertinent VA and private treatment records. See 38 U.S.C. §§ 5103(a)(1), (b)(1), 5103A; 38 C.F.R. § 3.159(c); Ivey v. Derwinski, supra; Bell v. Derwinski, supra. Second, a remand is necessary to afford the Veteran with an examination regarding the nature and severity of his service-connected right knee condition. The Veteran was last afforded a VA examination regarding his right knee condition in January 2013, in which joint stability tests were documented as normal. See January 2013 VA Knee and Lower Leg Conditions DBQ. The evidence of record indicates that the Veteran's right knee condition may have worsened since this examination. Specifically, the Veteran has asserted that his knee has gotten worse and manifests with instability. See June 2021 Board Hearing Transcript. Therefore, based on the statement indicating a manifestation of instability, the Board finds that a new VA examination is needed to ascertain the current severity of the Veteran's service-connected right knee condition. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Lastly, in light of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017), a remand is necessary to obtain a RETROSPECTIVE OPINION regarding the nature and severity of the Veteran's service-connected right knee condition. In Correia, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia, 28 Vet. App. at 168. Here, the January 2013 examiner did not specify whether active and passive motion were tested, or whether the results provided were weight-bearing or non-weight-bearing. See January 2013 VA Knee and Lower Leg Conditions DBQ. Additionally, in Sharp, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups, and repetitive use over time affect functional impact. Sharp, 29 Vet. App. at 26. Further, VA examiners are expected to offer opinions on functional loss that would occur during flare-ups and repetitive use over time based on estimates derived from relevant sources, including the Veteran's lay statements. Id. at 34. In other words, stating that the examination was not conducted during a flare-up or following repetitive use over time as the sole rationale for not addressing the functional impacts of such is not sufficient. Here, the January 2013 examiner did not address the functional impact of repetitive use over time or flare-ups, nor did they provide a rationale for not doing so. See January 2013 VA Knee and Lower Leg Conditions DBQ. As the January 2013 examination did not fully satisfy the requirements of 38 C.F.R. § 4.59, Correia or Sharp, the Board finds that a remand is necessary to obtain a retrospective opinion regarding the severity of the Veteran's service-connected right knee condition. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file: (a.) The Veteran's service records, to include records related to his service with the Naval Reserve; (b.) Any outstanding relevant private medical records, to include records relating to treatment from Dr. R. Dhar; and (c.) The entirety of the Veteran's VA treatment records, to include records relating to treatment within South Texas VAHCS and Texas VCB VAHCS. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran MUST be informed if any of these records are unable to be secured. 2. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his claimed back condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations, to include an MRI, should be conducted. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) For each diagnosed back condition, to include any radiculopathy associated therewith, provide the following opinions: i. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service, to include any periods of ACDUTRA or INACDUTRA. ii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such condition is caused by a service-connected condition, to include the Veteran's service-connected bilateral knee and ankle conditions. iii. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such condition underwent an incremental increase (aggravated), regardless of permanence, by a service-connected condition, to include the Veteran's service-connected bilateral knee and ankle conditions. (c.) In formulating the requested opinions, the examiner is instructed to consider and specifically address: i. The Veteran's self-reported lay history; and ii. Lay statements submitted in March 2015 by M. Hight, J. Martinez, J. Hernandez, P. Zapata, and G. Watters. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 3. After completing the development in Section One above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician to determine the nature and etiology of his claimed headaches. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations, to include an MRI, should be conducted. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. (b.) Opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that the Veteran's headaches had its onset during, or is otherwise related to, the Veteran's active duty service. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is also reminded that noting that a condition did not manifest in service as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. After completing the development in Section One, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate examiner regarding the nature and severity of his service-connected right knee condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) Obtain the Veteran's detailed lay history, including onset and progression of symptomatology. If the Veteran describes flare-ups, document the frequency, severity, and duration thereof. (b.) Test and document the ROM for both knees in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis. FOR EACH ROM, THE EXAMINER IS ASKED TO EXPLICITLY IDENTIFY THE DEGREE IN WHICH PAIN IS FIRST EVIDENCED BY THE VETERAN'S VISIBLE BEHAVIOR. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided. (c.) Identify the nature and severity of all current manifestations of the Veteran's service-connected left knee conditions. The extent of any weakened movement, excess fatigability, and incoordination should be described. Any additional impairment due to such should be assessed in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (d.) If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how such was determined. (e.) Provide a RETROSPECTIVE OPINION, utilizing the Veteran's medical records and lay history, and opine as to the severity of the Veteran's service-connected right knee condition from April 2012 to current. Any impairment, and any additional impairment due to repetitive use over time or flare-ups, should be assessed in terms of limitation to ROM, if possible. If the examiner is unable to render such an opinion, the examiner should specifically state why and provide a rationale for the determination. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that her reports must be taken into account in formulating the requested opinions. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.