Citation Nr: A21017178 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 190826-28198 DATE: October 25, 2021 ORDER Service connection for a right ankle disability is denied. Service connection for a headache disorder, to include on a secondary basis, is denied. FINDINGS OF FACT 1. The Veteran does not have a right ankle disability that originated in service, within a year of service, or is otherwise etiologically related to the Veteran's active service. 2. The Veteran does not have a headache disorder that originated in service or is otherwise etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The February 2021 Joint Motion for Partial Remand granted by an Order from the United States Court of Appeals for Veterans Claims (Court) is ultra vires, and the Board of Veterans' Appeals (Board) is not bound by it. 2. The criteria to establish service connection for a right ankle disability have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria to establish service connection for a headache disorder have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army Reserve with periods of active-duty service, including from July 2006 to December 2008, and from January 2009 to March 2010. This matter was originally before the Board on appeal from a June 2019 rating decision by a Department of Veterans Affairs Regional Office (RO). The Veteran filed his claim of service connection for a headache disorder and other disorders in July 2012. In an October 29, 2013 letter, VA notified the Veteran that the claims had been denied. The Veteran was also advised of his rights to appeal the decision within one year but he did not do so and the denials became final. Similarly, the Veteran was denied service connection for a right ankle disorder in an August 2016 rating decision, but did not appeal. In May 2018, the Veteran's counsel filed a notice of her appointment (VA Form 21-22a). In May 2018, counsel also requested a copy of the Veteran's claims folder. VA provided counsel with a copy of the claims folder in August 2018. The Veteran applied to reopen the present claims on October 26, 2018. In the June 2019 rating decision, the RO conducted a de facto reopening of the claims and denied the benefits. The Veteran was notified of the denials in a July 2, 2019 letter. With the notice of this decision, the Veteran was also notified in a VA form 20-0998 of the options he had for review of the RO's decision. Among these options was an appeal to the Board. He was informed that the Board did not have a duty to assist him in obtaining additional evidence, but that the Board instead could review whether VA properly fulfilled its duty to assist him in the original claims process. On August 25, 2019, the Veteran through counsel sought review of the RO's decision under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA). He submitted a VA Form 10182, Decision Review Request Board Appeal (Notice of Disagreement) and elected a hearing lane review by a Veterans Law Judge. 38 C.F.R. § 19.2 (d). In an October 2019 letter to the Board, counsel noted that the RO reviewed a VA medical examination. She requested that the Board provide her with a copy of the examiner's VA personnel file, or "at a minimum," the examiner's curriculum vitae showing the examiner's education, training, experience, and any disciplinary action imposed by VA or by any licensing board, and any other information in VA's possession that "may bear on the examiner's qualifications to perform this type of exam[ination] or this examination in particular." The requested Board hearing was held on January 28, 2020 before a Veterans Law Judge. A copy of the transcript of that hearing has been associated with the claims file. In July 2020, the Board issued a decision, which in pertinent part, denied the claims at issue. In February 2021, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran's attorney and VA's Office of General Counsel (OGC) requesting the Court vacate the July 2020 Board decision denying service connection for the claims. The parties agreed that given the Veteran's October 2019 request for the examiner's qualifications was not answered, the Court should remand the claims to the Board to assist the Veteran in obtaining the curriculum vitae (CV) of the June 2019 examiner. The Veteran through counsel has also requested a second Board hearing. The Veteran's request for a second hearing Although the legacy system allows for another hearing after Court remand, no such provisions exist in the AMA system. In Cook v. Wilkie, a claimant was found to have a right to a new hearing after a remand from the Court. 908 F.3d 813 (Fed. Cir. 2018). However, this decision was based on the provisions of 38 U.S.C. § 7107(b) that stated, "The Board shall decide any appeal only after affording the appellant an opportunity for a hearing." The AMA deleted this wording from 38 U.S.C. § 7107(b) in its entirety." Veterans Appeals Improvement and Modernization Act of 2017 (AMA), Pub. L. No. 115-55, 131 Stat. 1105 (codified as amended in 38 U.S.C. § 7107(b)). The revised 38 U.S.C. § 7107 provides for "a hearing" when requested on "the notice of disagreement." 38 U.S.C. § 7107(c). The revised 38 U.S.C. § 7107 does not provide for a second hearing. "AMA statutes and regulations were enacted and promulgated nearly 30 years after Congress created this Court. . . . with the full knowledge that this Court exists and regularly sends cases back to the Board." Andrews v. McDonough, No. 19-3227, 2021 U.S. App. Vet. Claims LEXIS 972, at *14 (May 28, 2021). Even so, Congress decided not to provide for a second hearing after a Court remand. Therefore, under the AMA, a right to a second hearing after a Court remand does not exit. Here, the Veteran was already afforded a hearing after a request was made in the notice of disagreement received in August 2019. Below, the Board finds that it may not remand this matter to comply with the Court's directive as framed through the parties' JMR i.e., to correct a duty to assist error that occurred after the record was closed and the sole apparent reason the matter was remanded. Especially given the Board's disposition of the issue of a duty-to-assist violation as below, there is no substantial change in the record from the time the Board decided this matter in July 2020. The parties' JMR mentions no other deficiencies in the Board or the RO's adjudication of the claims. Therefore, the Veteran's request for a second hearing is denied. Joint Motion for Partial Remand Respectfully stated, the JMPR's finding that the Board had a duty to assist was directly contrary to the law as amended by the AMA and was clearly erroneous. The Board does not have the legal authority to remand to assist a Veteran who makes a request for a CV after VA's duty to assist has expired. Generally, under the "law of the case" doctrine, once the Court adjudicates an issue and returns the matter to the Board, the Board is precluded from readjudicating that issue. a lower court may not readjudicate an issue that an appellate court Chisem v. Brown, 8 Vet. App. 374 (U.S. 1995). There are three exceptions to this rule: "(1) when the evidence at trial was substantially different from that in the former trial upon which the appellate court based its decision; (2) when the controlling authority has since made a contrary decision of law; and (3) when the appellate decision was clearly erroneous." Chisem v. Brown, 8 Vet. App. 374, 375 (U.S. 1995). The February 2021 JMPR is based on the ruling in Francway v. Wilkie. 940 F.3d 1304 (Fed. Cir. 2019). In Francway the United States Court of Appeals for the Federal Circuit (Federal Circuit), found that the duty to assist under the 38 U.S.C. § 5103A requires VA to produce evidence of the competency of an examiner when requested by a Veteran. However, Francway was an interpretation of the legacy version of 38 U.S.C. § 5103A. The present case was adjudicated under the law and regulations applicable under the AMA because the AOJ decision was made after February 19, 2019. As the Court recently noted, the AMA is a "whole new world" for adjudicating Veteran's benefits. Andrews at *10. For cases that fall under the AMA, VA's duty to assist was amended along with the text of 38 U.S.C. § 5103A. That AMA added subsection (e) which states, in part, that the "duty to assist under this section shall not apply . . . to the Board of Veteran's Appeals." Veterans Appeals Improvement and Modernization Act of 2017 (AMA), Pub. L. No. 115-55, 131 Stat. 1105 (codified as amended in 38 U.S.C. § 5103A). This is a clear divergence from the case law in Francway which found the Board had a duty to assist. The change in the underlying law with specific applicability to AMA cases, such as the one adjudicated here, means the ruling in Francway was not applicable. The Board does not have the authority to remand this matter based on the purported 38 U.S.C. § 5103A error. The Board has two options when confronted with a 38 U.S.C. § 5103A error. First, if permissible by law, it may grant the full benefit sought; or second, if the error occurred before the AOJ decision, it may remand the claim to the AOJ for correction. 38 U.S.C. § 5103A (f)(2). As discussed below, a full grant of the benefits sought is not permissible by law. This leaves the Board with option to remand if the error occurred before the AOJ decision. That is not the case here. The purported error was a failure to provide the Veteran with a copy of the CV for the June 2019 examiner when the Veteran requested it in October 2019. The AOJ decision was made in June 2019. The Veteran's request for the CV was not made until more than four months after the AOJ decision. Therefore, the purported error identified in the February 2021 JMPR did not occur prior to the AOJ decision, and the Board, which itself does not have a duty to assist, cannot remand to the AOJ to correct this error. The Veteran has alternative means to obtain the CV of the June 2019 examiner. The AMA was designed to afford claimants more extensive control over an appeal. This includes multiple options on how to dispute an unfavorable decision. The Veteran chose to appeal the June 2019 AOJ decision to the Board using a VA Form 10182. This choice limited the evidence which would be available for review and forclosed any additional duty to assist from the VA. However, the Veteran had the option to file a supplemental claim. This action would have maintained VA's duty to assist him and, provided the supplemental claim is filed with within one year of last decision on the issue, it would preserve the effective date if a grant is awarded. Thus, the Veteran had the ability to obtain the CV without losing any potential back-benefits. To ignore the Veteran's choice to appeal to the Board and forgo VA's duty to assist would be contrary to the purpose of the AMA. The AMA was a negotiated solution to streamline the appeals of veterans by giving them a choice to terminate VA's duty to assist while maintaining their due process rights. Andrews at *9. The Board does not have the statutory authority to comply with the JMPR. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board will assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board will consider lay evidence presented by a Veteran concerning continuity of symptoms after service and may not be deem it to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). However, the Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service Connection for a Right Ankle Disability is Denied The Veteran asserts that he developed a right ankle disability due to wear and tear which occurred during active-duty service. The Veteran's service treatment records (STRs) appear incomplete as they do not include an enlistment or separation examination. A June 2013 memorandum noted that the Veteran's STRs from July 2006 to December 2008, and from January 2009 to March 2010 were unavailable. However, STRs were obtained and associated with the claims file in May 2019. At that time, a STR certification form shows that a thorough review of all known Department of Defense (DoD) systems had been accomplished as directed and that, other than the records provided, it found that no further records existed. When service records are incomplete the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (wherein the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). A review of the available STRs do not show any complaints or treatment for a right ankle disability. However, treatment records include an April 6, 2007 sick call visit for left ankle pain with the Veteran reporting "no ankle injury in the past; and "no other complaints or concerns at this time." In May 2007, the Veteran was treated for a left ankle lateral ligament sprain. In post-deployment health assessments dated December 2008 and December 2009 the Veteran reported being in excellent health and denied having seen a healthcare provider for swollen, stiff or painful joints. Additionally, post-service medical records are absent for any complaints or treatment for a right ankle disability. Instead, VA medical records consistently show references to a left ankle injury and a pre-service left ankle fracture. While there are a few notations of reports of "ankle pain," there is no evidence of right ankle complaints, symptoms or disability. In August 2016, the Veteran presented to his local VA medical center. However, the Veteran only reported difficulty sleeping and low back, bilateral knee and right shoulder pain. Additionally, the physician only noted a reported past medical history for a left ankle disorder. The Veteran did not report, and the record does not show, any complaints or findings related to a right ankle disorder. In a December 2018 VA primary health care initial visit, the Veteran reported that he had left ankle open reduction internal fracture surgery. There was no mention of any right ankle symptoms or history. The Veteran underwent a VA ankle examination in May 2019. The examiner noted diagnoses pertaining to the left ankle disability. The examination report does not show that the Veteran reported, or the examiner noted any disorder related to his right ankle. In a January 2020 medical opinion from Dr. Frank Graf, the physician opined that the Veteran had "bilateral ankle pain with residuals of bilateral ankle ligament injuries and aggravation of residuals of bimalleolar fracture of the left ankle." In support of this opinion, Dr. Graf stated that the orthopedic disorders, to include the bilateral ankle, was causally related to both macrotrauma and repetitive microtrauma occurring during active-duty service. He identified no in-service incidents. However, Dr. Graf does not indicate the bases of his opinion and it is therefore without a factual predicate. This is noteworthy in light of the fact that there are no other references anywhere in the record to right ankle symptomatology. Instead, the private medical opinion merely lists "bilateral ankle pain" and states that the causation was related to both macrotrauma and microtrauma. Dr. Graf does not cite to any medical evidence showing a diagnosis or treatment for a right ankle ligament injury. Additionally, Dr. Graf does not note or discuss what, if any, macrotrauma or microtrauma caused a purported right ankle disability. Given these inadequacies, the Board finds the January 2020 private medical opinion has no probative value. Instead, the weight of the cumulative STRs and post-service medical records which do not show any complaints or treatment for right ankle pain or a right ankle disorder, are more probative than either the Veteran's lay statement that he occasionally had pain in his right ankle, or the January 2020 private medical opinion which simply states the Veteran has a bilateral ankle disability related to service. The repeated reports of left ankle pain suggest at least a reasonable expectation that similar symptoms or disability would be discussed in the right ankle. The absence of such complaints combined with intermittent affirmative assertions of no problems in the right ankle outweigh the Veteran's reports of pain in the right ankle made solely for compensation purposes. The Veteran has not been afforded a VA examination with respect to his claim for service connection for right ankle disability but finds no such examination was required because the evidence does not indicate that any claimed disability, or symptoms thereof, may be associated with the Veteran's active service. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As discussed above, the Board finds there is no competent, credible evidence that any right ankle disorder began during service or following active-duty service. Therefore, a VA medical opinion is not necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4)(i)(C); see also Waters v. Shinseki, 601 F. 3d 1274 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). Absent a diagnosis or evidence of an in-service occurrence for a right ankle disability, the Board finds that the first and second Shedden requirements have not been met and the probative evidence is against the Veteran's claim for service connection for that disorder. The claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Service Connection for a Headache Disorder is Denied The Veteran asserts that he has a headache disorder secondary to his service-connected posttraumatic stress disorder (PTSD). As noted above, the Veteran's STRs appear incomplete as they do not include an enlistment and separation examination. The Veteran's STRs do include a December 2008 post-deployment health assessment showing the Veteran reported that he was in excellent health during the past month and that his health was currently much better than before he was deployed. The Veteran also denied having seen a healthcare provider for bad headaches. Additionally, the Veteran denied having been exposed to any chemicals or other environmental hazards during his deployment, and he denied being worried about any health issues due to any environmental exposures. The Veteran further denied having had nightmares, using more alcohol or that he felt he wanted or needed to cut down on drinking. In addition, he reported drinking alcohol two to four times per month with one to two drinks on each occasion. The STRs also include a December 2009 post-deployment health assessment again showing the Veteran reported that he was in excellent health during the past month and that his health was currently much better than before he was deployed. The Veteran denied having seen a healthcare provider for bad headaches or having been exposed to any chemicals or other environmental hazards during his deployment, and he denied being worried about any health issues due to any environmental exposures. The Veteran further denied having had nightmares, and he denied that he ever drank alcohol. A June 2010 post-deployment health assessment noted no evidence of an alcohol-related problem and the Veteran denied having nightmares. Post-service medical records show that in August 2012, a VA medical record noted that the Veteran had headaches that would come and go. An August 2012 VA medical record noted a negative alcohol screen. In September 2012, the Veteran reported that he consumed alcohol two days per week with two drinks per occasion. The Veteran did not consider his alcohol use a problem. An October 2012 VA medical record noted headaches as an active medical problem. The Veteran underwent a VA PTSD examination in July 2016. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, and persistent delusions or hallucinations. The Veteran did not report any headache symptoms. He also reported consuming two marijuana cigarettes a day and denied any alcohol or other drug use. The Veteran underwent another VA PTSD examination in January 2018. The examiner noted symptoms of anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran did not report any headache symptoms. At a January 2020 Board hearing, the Veteran asserted a headache disorder directly related to service, and, alternatively, secondary to his service-connected PTSD. The representative noted a February 2014 progress note which listed chronic headaches on an active problem list. The Veteran testified that his headaches began when he began having nightmares. The Veteran also reported that he began drinking a lot following his first deployment, and that his nightmares and headaches began during his second deployment. In a January 2020 opinion letter from orthopedist Dr. Graf the orthopedist opined that the Veteran had chronic headaches accompanying symptoms of PTSD. Lastly, in an April 2020 letter brief, the representative noted that the Veteran elaborated on his service connection claim for a headache disorder by noting that he began experiencing bad headaches during his first deployment. The Veteran also reported that his headaches had remained consistent since service. After a review of the evidence of record, the Board finds that entitlement to service connection for a headache disorder is not warranted. The Veteran's VA medical records clearly noted headaches as an active medical problem. Therefore, the remaining question is whether the Veteran has a headache disorder that is otherwise related to service. The Veteran's STRs are completely silent as to any complaint or treatment for a headache disorder and finds that there is no competent medical evidence linking his current headache disorder to service or his service-connected PTSD. Specifically, the Veteran has provided conflicting lay statements with regard to his headache disorder. The Veteran asserts that the onset of his headache disorder began during service following his first deployment. He further reported that at that time, he began drinking heavily and that his symptoms included nightmares. However, a review of the Veteran's post-deployment health assessment following his first deployment shows that he specifically denied having nightmares or that he had been treated for headaches. He additionally denied abusing alcohol. Later post-deployment health assessments further show the Veteran denied the same. Post-service medical records, including VA psychiatric medical records, continue to show that the Veteran did not have an alcohol use disorder, and he further denied abusing alcohol. They do show that he used cannibis and was assessed with a cannibis use disorder. Finally, VA PTSD examinations conducted during the period on appeal do not show that the Veteran reported having a headache disorder and the examiner did not note headaches as a PTSD symptom. While the record contains a private medical opinion noting headaches as a PTSD symptom, the Board finds Dr. Graf's medical opinion is not factually supported. Dr. Graf did not provide any analysis with regard to the medical opinion provided, nor did Dr. Graf identify any medical record related to the Veteran's current headache disorder. Instead, Dr. Graf simply noted that the Veteran's headaches were an accompanying symptom of his PTSD. Although Dr. Graf subtitled a section of his opinion "Review of Medical Records," it is unclear what basis Dr. Graf relied on in coming to the nexus conclusion linking the headaches to PTSD. He cites no references on the four corners of his report indicating support for a connection between the Veteran's PTSD and his headaches. Neither the Veteran's treatment records, nor his VA PTSD examinations, noted headaches as a PTSD symptom. In the event Dr. Graf's medical opinion is dependent on the Veteran's lay statements, as noted above, those lay statements have been found to be unreliable. In any event, the Board cannot attempt to interpret or extrapolate the rationale employed by the examiner on its own. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (finding that the Board is prohibited from exercising its own independent judgment to resolve medical questions). Moreover, a medical opinion that is unsupported and unexplained is purely speculative and does not provide the degree of certainty required for medical nexus evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). The Veteran has not been afforded a VA examination with respect to this claim. However, the conduct of a VA examination is not appropriate on this AMA hearing lane record as no duty to assist violation has occurred and an examination was not required. The evidence does not indicate that any claimed disability, or associated symptoms are linked to the Veteran's active service or his service-connected PTSD. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As discussed above, the Board finds there is no competent, credible evidence that any headache disorder began during service or is a symptom secondary to his service-connected PTSD. Therefore, a VA medical opinion is not necessary to decide the claim. 38 C.F.R. § 3.159 (c)(4)(i)(C). The Veteran's lay statements and the January 2020 private medical opinion are of little probative value and that the preponderance of the evidence of record is against the claim. The appeal is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Reed, Counsel The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.