Citation Nr: 21067116 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-25 800 DATE: November 3, 2021 REMANDED The issue of service connection for headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. The issue of service connection bilateral knee osteoarthritis, claimed as joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. The issue of service connection for other specified depressive disorder, claimed as memory loss and sleep disturbance, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1989 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) from an April 2018 rating decision. 1. The issue of service connection for headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. The Veteran contends he has multiple undiagnosed illnesses, including headaches, associated with his service in the Southwest Asia theater of operations during the Persian Gulf War. He was afforded VA examinations in February 2018 and June 2019 to evaluate the nature and etiology of his claimed headache disability. Although each examiner provided a medical opinion regarding the etiology of the claimed headache disability, neither examiner addressed whether the current headache symptom was related to the single headache documented during military service. As a result, the claim must be remanded to obtain a medical opinion. Pertinent to his claim, the Veteran's service treatment records reflect that he sought treatment for a headache in August 1989 that had been present for one day. He denied any history of head trauma, upper respiratory illness (URI) symptoms, any headache pain lasting more than five days, waking from headache pain, any nausea or tingling, any visual problems, or any drowsiness. He was able to touch his chin to his chest and his blood pressure was not elevated. The diagnosis was headache and the examiner prescribed Tylenol and increased fluid intake. Subsequent service treatment records are entirely silent for complaints, diagnosis, or treatment related to headaches. In health questionnaires for dental treatment completed and reviewed in October 1989; March, May, August, and November 1991; and April 1992, the Veteran was asked to check or circle any of a number of medical conditions that applied to him, including frequent headaches. He did not endorse having frequent headaches. In an April 1992 report of medical history, he denied currently or ever having frequent or severe headaches. On examination the same day, his neurologic function was reported as normal on clinical evaluation. Post-service medical evidence includes records from the Miami VA Medical Center (VAMC) dated from February to March 1995 related to a right ankle injury and surgery; a July 2013 VA examination related to the Veteran's service-connected low back disability; records from the San Antonio VAMC dated from November 2014 to January 2016; private treatment records dated from April 2018 to March 2019 related to a worker's compensation claim for trigger finger involving both hands; records dated from September 2018 to October 2018 from the Portland VAMC; and additional VA examination reports pertinent to other claims. The records are silent for complaints, diagnosis, treatment, or reference to any problems with headaches. During the February 2018 VA examination to evaluate his claimed headache disability, the Veteran described having a light pressure in his head similar to the feeling of having a head cold that can occur throughout the day or sometimes feeling a small pain behind both ears leading to pressure on the top of his head. He stated that these headaches had been occurring since he had been out of the military. He also reported that he was diagnosed with sleep apnea around 2004 while living in Texas. During the June 2019 VA examination, he related that his headaches began while in the military related to loud noises and since then, he had intermittent, mild headaches that occurred two to three times per week. Each examiner opined that the Veteran's headaches were attributable to his insufficiently-treated obstructive sleep apnea (OSA), a disability for which he had previously claimed entitlement to service connection but was not found to be incurred in or related to his service. Evidence of record supporting the examiners' conclusions indicates that when the Veteran established medical care at the San Antonio VAMC in November 2014, he reported that he had been diagnosed with OSA three years earlier in 2011 and was using a CPAP. The assessment included morbid obesity; OSA using CPAP. Other evidence of record documents that the Veteran had gained over 100 pounds since discharge from military service and since his 1995 right ankle injury and surgery. During a December 2014 VA nutrition consultation, he attributed his unintentional weight gain to his decline in physical activity after leaving military service and to post-service ankle and shoulder fractures. During a February 2018 VA examination to evaluate his claimed OSA disability, he reported he was diagnosed with OSA around 2004 and admitted that he did not use his CPAP all the time because although it helped his daytime tiredness, it "causes him to wake up with joint pain and stiffness in his elbows and knees." Similarly, during the June 2019 VA examination, he disclosed that he had not used his CPAP since moving to Portland in November 2017 because the mask was broken and the machine was not working. In summary, the current medical evidence of record does not support a continuity of headache symptomatology since the August 1989 in-service headache or since separation from service, and the only lay evidence suggesting a continuity of headache symptomatology since military service or a relationship between the current headaches and the August 1989 in-service headache is from the Veteran himself. Nevertheless, laypersons are competent to describe symptoms such as headache pain and a continuity of such symptoms. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). VA will provide a medical examination or obtain a medical opinion when the evidence of record contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; establishes that the veteran suffered an event, injury, or disease, in service; and indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability; but the information and evidence of record does not contain sufficient competent medical evidence to decide the claim. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (emphasis added). VA will refrain from or discontinue providing assistance in obtaining evidence, such as medical opinions, when a claim is inherently incredible or clearly lacks merit. 38 C.F.R. § 3.159(d)(2). In this case, the evidence of record does not support the contention that the current headache disability began in service or is related to the August 1989 in-service headache; at the same time, however, the claim is not inherently incredible or clearly lacking merit. Therefore, because there is an indication by the Veteran that his current headaches are related to the August 1989 in-service headache and neither the February 2018 nor the June 2019 VA examiner provided a medical opinion addressing this theory of contention, remand is necessary to obtain an addendum medical opinion. See Barr, 21 Vet. App. at 312 (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). 2. The issue of service connection bilateral knee osteoarthritis, claimed as joint pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. In December 2017, VA received the Veteran's claim for service connection for "multiple undiagnosed conditions from Gulf War, including joint pain." During a February 2018 VA examination, the Veteran identified the location of his joint pain as being in his knees and elbows. (He also described back pain, which is associated with his service-connected low back disability). He related that his "elbows and knees hurt only after he has used his CPAP machine," explaining that "[w]hen he uses his CPAP, he sleeps on his back partially propped up all night without moving and awakens in that position" with "stiffness and pain in the elbows and knees." In comparison, he indicated that he does not wake up with those symptoms if he does not use his CPAP because when he "does not use [his] CPAP, he is up and down all night." He added that he does not get knee pain during the day except temporarily with prolonged standing and when walking up several flights of stairs. Examination of the Veteran's elbows was reported as normal. Examination of his knees suggested mild osteoarthritis, with bilateral crepitus and bilateral medial joint line tenderness to palpation but was otherwise normal. X-rays of the knees confirmed mild osteoarthritis bilaterally. The examiner opined that the Veteran's joint pain was positional when remaining immobile for several hours while wearing his CPAP; his knee pain was also attributable to bilateral osteoarthritis, a clear and specific diagnosis confirmed by x-ray evidence. A September 2018 telephone note reflects that the Veteran contacted the Portland VAMC to request a new-patient appointment. October 2018 records indicate that he established medical care at Hillsboro Internal Medicine though the Veterans Choice program and had reported a history of chronic midline low back pain without sciatica and chronic pain of the left knee. Those records are not associated with the claims file. The AOJ should request any treatment records from Hillsboro Internal Medicine pertinent to the claimed knee disability. During a June 2019 VA examination, the Veteran described a "gradual onset" of bilateral knee pain without injury while in the military that "came on while doing the heavy carrying." He reported experiencing constant pain in both knees since military service. Following a review of the claims file and examination, the examiner opined it was less likely as not that the current bilateral knee osteoarthritis was incurred in or caused by the Veteran's military service. In support of the conclusion, the examiner reasoned that the Veteran reported a gradual onset of knee pain and denied any specific injury; his service treatment records were silent about knee pain; his original claim for VA disability benefits in February 1993 was limited to low back pain; and his bilateral knee pain was due to osteoarthritis, which was demonstrated on x-ray examination. In his August 2019 substantive appeal, the Veteran reiterated his contention raised during the recent VA examination that his current bilateral knee osteoarthritis was caused by the physical demands associated with his military service. Citing medical literature, which he included, from two sources, he asserted that "[r]easearch indicates that use of body armor and heavy packs causes strain on knees as well as other joints." He expressed his belief that his bilateral knee arthritis "should be attributed to the combat training and operations I was engaged in while in the U.S. Army." The June 2019 VA medical opinion did not specifically address the Veteran's contention that his current bilateral knee osteoarthritis began gradually during military service while carrying heavy loads and continued after discharge from military service. The AOJ should obtain an addendum medical opinion that addresses the Veteran's lay report that he carried heavy loads during military service and his belief that his current mild osteoarthritis of both knees is related to that experience. 3. The issue of service connection for other specified depressive disorder, claimed as memory loss and sleep disturbance, to include as a qualifying chronic disability under 38 C.F.R. § 3.317, is remanded. In December 2017, VA received the Veteran's claim for service connection for "[m]ultiple undiagnosed conditions from Gulf War, including...memory loss [and] sleep disturbance." The Veteran's service treatment records include a September 1990 stamped notation, "screening for potential suicides," with a finding of "no [increased] risk noted." The records also include two general counseling forms indicating that he had failed to pass the Army Physical Fitness Test (APFT) in January 1992 and April 1992. The Army began the discharge process under AR 635-200, Chapter 13 based on unsatisfactory performance for two consecutive failures of the APFT within a 90-day period. In an April 1992 Chapter 13 report of medical history, the Veteran denied currently or ever having depression or excessive worry, frequent trouble sleeping, loss of memory or amnesia, or nervous trouble of any sort. On examination the same day, his psychiatric function was reported as normal. In May 1992, the Veteran was seen at the Mental Health Service at the request of his command. The report of a mental status evaluation indicated his behavior was normal, he was fully alert and oriented, his mood or affect was unremarkable, his thinking process was clear with normal thought content, and his memory was good. The examining psychiatrist concluded the Veteran had the mental capacity to understand and participate in the proceedings, he was mentally responsible, and he was psychiatrically cleared for any administrative action deemed appropriate by his command. Post-service VA and private treatment records are silent for complaints, diagnosis, or treatment related to psychiatric problems. During a November 2014 VA primary care visit, screening for depression and PTSD was negative. In February 2018, the Veteran was afforded a VA examination by a psychologist. He reported that an adult attempted to sexually assault him when he was 12 or 13 years old, but his mother intervened; he denied any mental health concerns associated with this event. He indicated that he did fair in school but left in the tenth grade because he "wasn't interested." He obtained a GED in 1986 and joined the military in 1989. He denied any mental health concerns prior to or during his time in the military. Instead, he reported that he began experiencing a depressed mood on most days around 2000, approximately eight years after discharge from military service. He also stated that his eldest son was murdered in October 2017. Following a review of the claims file and examination, the diagnosis was other specified depressive disorder. The examiner commented that the Veteran's depression did not appear to be connected to service. Unfortunately, the February 2018 VA examiner did not provide a rationale to support the conclusion that the Veteran's depression was not related to his military service other than observing that the Veteran had identified the onset of his symptoms beginning around 2000. In addition, the service treatment records associated with the claims file do not reflect any context as to why the Veteran was screened for suicide in September 1990. Similarly, there is no information regarding the Veteran's failure of two consecutive APFTs and it is unclear whether the May 1992 mental status evaluation prior to his discharge included a psychosocial assessment or clinical interview. The AOJ should obtain the Veteran's complete service personnel records and request any mental health records that may have been maintained separately from his service medical records. Then, the AOJ should schedule the Veteran for an examination with a psychologist or psychiatrist to obtain a medical opinion regarding the etiology of his current depressive disorder that is supported by an articulated rationale or explanation. The matter is REMANDED for the following action: 1. Obtain the Veteran's complete service personnel records. 2. Attempt to obtain any in-service mental health records that may exist and that may have been maintained separately from the Veteran's service medical records. 3. With any necessary assistance from the Veteran, obtain all records of evaluation and treatment from Hillsboro Internal Medicine since establishing care in October 2018 through the Veterans Choice program. 4. Ask the Veteran to identify any other VA or private treatment records pertinent to his claimed, bilateral knee, or depression disability since separation from service that have not already been obtained. Attempt to obtain any pertinent records the Veteran identifies. 5. Provide the Veteran's entire electronic claims file including a copy of this Remand, which contains a summary of the evidence of record, to the June 2019 VA examiner, or to another appropriate clinician for review. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the current headache syndrome, which was diagnosed on VA examination in February 2018, had its onset during the Veteran's military service, or is otherwise etiologically related to that service, to include the one documented headache for which he sought treatment in August 1989. A detailed medical rationale must be provided for all opinions expressed. If an examination is necessary to provide the requested opinion, the AOJ should arrange for such examination. The examiner must consider the Veteran's description of his in-service and post-service headache symptoms. If there is any medical reason to accept OR reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his current headaches, this should be noted. The Board has not made a credibility determination at this juncture. 6. Provide the Veteran's entire electronic claims file including a copy of this Remand, which contains a summary of the evidence of record, to the June 2019 VA examiner or to another clinician for review. Following a review of the claims file, the reviewing examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater likelihood) that the current bilateral knee osteoarthritis, which was confirmed by x-ray examination on VA examination in February 2018, had its onset during the Veteran's military service, or is otherwise etiologically related to that service, to include his contention that carrying heavy loads during service strained his knee joints and led to the current bilateral knee osteoarthritis. A detailed medical rationale must be provided for all opinions expressed. If an examination is necessary to provide the requested opinion, the AOJ should arrange for such examination. If there is any medical reason to accept or reject the proposition that the Veteran's current bilateral knee osteoarthritis is related to carrying heavy loads during service, this should be noted. The Board has not made a credibility determination at this juncture. 7. Schedule the Veteran for an examination with a psychologist or psychiatrist. Provide the entire electronic claims file, including a copy of this Remand, which contains a summary of the evidence of record, to the designated examiner for review. Following a review of the claims file and examination, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater likelihood) that any current psychiatric disorder, to include other specified depressive disorder, had its onset during military service, or is otherwise etiologically related to military service. A detailed rationale or explanation must be provided for all opinions expressed. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.