Citation Nr: 21068243 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-51 553 DATE: November 9, 2021 ORDER Service connection for tension headaches is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for an acquired psychiatric disorder (other than posttraumatic stress disorder (PTSD)) is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for benign prostatic hypertrophy is remanded. FINDING OF FACT The Veteran's tension headaches had their onset in service. CONCLUSION OF LAW The criteria for service connection for tension headaches have been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1988 to July 1992, including combat service in Saudi Arabia and Kuwait and his decorations include the Combat Action Ribbon and Southwest Asia Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in June 2019 when they were remanded for additional development. The Board notes that the June 2019 Board remand included the matters of entitlement to service connection for tinnitus and PTSD. During the pendency of the appeal, an August 2020 rating decision granted service connection for PTSD, rated 70 percent disabling, and for tinnitus, rated 10 percent disabling, effective November 24, 2013. As the benefits sought have been awarded, the claims are no longer on appeal and are not addressed further. 1. Entitlement to service connection for chronic headaches. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In cases of a veteran who engaged in combat with the enemy during active service during a period of war, VA will accept lay evidence of in-service incurrence of a disease or injury, if the lay evidence of onset is consistent with the circumstances, conditions, or hardships of the veteran's service, notwithstanding the lack of documentation of this in-service incurrence. See 38 U.S.C. § 1154(b). Further, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). The Veteran seeks service connection for chronic headaches, contending such began during service and continued since his service in the Persian Gulf War. See, e.g., February 2015 VA treatment record. The Veteran's DD Form 214 shows that his decorations and awards include the Combat Action Ribbon, and his military occupational specialty was basic rifleman. The Veteran also has confirmed service in Saudi Arabia and Kuwait. March 2020 VA examination diagnosed tension headaches, with reported onset in 1992. The Board finds the Veteran is competent to report his headaches and the onset of his headaches, and the Board finds his statements to be credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). As noted above, the Board presumes the occurrence of the in-service injury based on the Veteran's combat service in the Persian Gulf War. In addition, the medical evidence shows that the Veteran has been diagnosed as having tension headaches, and he reports the onset of the condition during combat service in the Persian Gulf War. Furthermore, the Board finds that the Veteran is both competent to report headaches during and since service in the Persian Gulf War, and that his account of having headaches since that time is credible. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that his headaches became manifest during his combat service. See Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). As such, service connection for tension headaches is warranted. REASONS FOR REMAND 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. 4. Entitlement to service connection for a low back disability is remanded. 5. Entitlement to service connection for a left shoulder disability is remanded. 6. Entitlement to service connection for a left elbow disability is remanded. 7. Entitlement to service connection for a right ankle disability is remanded. 8. Entitlement to service connection for a left ankle disability is remanded. 9. Entitlement to service connection for an acquired psychiatric disorder (other than posttraumatic stress disorder (PTSD)) is remanded. 10. Entitlement to service connection for bilateral hearing loss is remanded. 11. Entitlement to service connection for benign prostatic hypertrophy is remanded. These matters were previously remanded by the Board in June 2019, at least in part, to secure best copies and complete records of the Veteran's service treatment records. Post-remand development includes a response that all available requested records were shipped to the contracted scan vendor for upload in February 2015. In November 2019, VA sent the Veteran a letter requesting he submit any service treatment records in his possession. In January 2020, VA sent the Veteran another letter indicating that no response had been received from him regarding the availability of any service treatment records, and that all efforts to obtain the needed information have been exhausted, and further attempts to obtain the records would be futile. In February 2020, a response included that all available requested records were shipped to the contracted scan vendor for upload in February 2015. After a review of the evidence of record, the Board finds that exhaustive development for all service treatment records has not been sought, and given the critical nature of any such records, further development to secure them is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, as noted above, the Veteran served in combat during the Persian Gulf War. Therefore, the Veteran is considered a Persian Gulf Veteran and the provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 are applicable. Post-service treatment records include a diagnosis of multiple arthralgia, to include the knees, left shoulder, left elbow, low back and ankles. See October 2014 VA treatment record. The Veteran was afforded VA examinations in March 2020. The Board finds that the examiner did not properly address the claimed disabilities pursuant to the provisions of 38 C.F.R. § 3.317. Accordingly, the Board finds that the Veteran should be afforded another VA examination(s) to determine the nature and etiology of the Veteran's claimed musculoskeletal disabilities. The matters are REMANDED for the following action: 1. Arrange for exhaustive development to secure outstanding service treatment records. The development must specifically include contacting all storage facilities where records sought may have been retired, with a request for such records. If no further records are located, it should be noted in the record, along with a description of the scope of the search, and the Veteran should be notified and requested to identify if he had any additional information to complete the development sought. 2. Obtain any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of his right knee, left knee, left shoulder, left elbow, right ankle, left ankle and low back. All indicated tests and studies should be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Please state whether the Veteran's musculoskeletal symptoms are attributable to a known clinical diagnosis. If the Veteran does not now have, but previously had any such condition, when did that condition resolve? In this regard, the examiner is directed to the October 2014 VA treatment record diagnosis of multiple arthralgia. (b) Is the Veteran's disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (2) a diagnosable chronic multisymptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? (c) If, after reviewing the Veteran and the claims file, you determine that the Veteran's disability pattern is either a diagnosable chronic multi-symptom illness with a partially explained etiology ((b)(2) above), or a disease with a clear and specific etiology and diagnosis ((b)(3) above), then please opine as to whether it is at least as likely as not related to presumed environmental exposures experienced by the Veteran during service in Southwest Asia. (d) Is it at least as likely as not that any diagnosed musculoskeletal disability had its onset directly during the Veteran's service or is otherwise causally related to any event or circumstance of service, including environmental exposures during service in Southwest Asia during the Persian Gulf War? In offering all opinions, the examiner must specifically acknowledge and discuss the Veteran's competent report of musculoskeletal symptomatology present for many years as well as the Veteran's report as to the onset of his musculoskeletal problems. The examiner must provide a rationale for any and all opinions expressed, which should be set forth in a legible report. If an opinion cannot be rendered without resorting to speculation, that should be explained. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Marley, 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.