Citation Nr: 21068486 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-06 934 DATE: November 10, 2021 REMANDED Entitlement to service connection for left knee instability, to include as secondary to left knee tendonitis with subluxation and strain (previously strain with pes anserine bursitis), is remanded. Entitlement to service connection for right knee degenerative arthritis (claimed as right knee degenerative condition), to include as secondary to left knee tendonitis with subluxation and strain (previously strain with pes anserine bursitis), is remanded. Entitlement to service connection for lumbar spine degenerative disc and joint disease with degenerative changes of the bilateral SI joint (claimed as back degenerative condition), to include as secondary to left knee tendonitis with subluxation and strain (previously strain with pes anserine bursitis), is remanded. Entitlement to service connection for migraine headaches including migraine variants (claimed as severe migraines) is remanded. Entitlement to service connection for traumatic brain injury (claimed as closed head injury and head trauma) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to January 1983. These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2015 and May 2016 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In March of 2021, the Veteran presented testimonial evidence at a videoconference hearing held before the undersigned Veterans Law Judge. A transcript is of record. Entitlement to service connection for left knee instability, right knee degenerative arthritis, lumbar spine degenerative disc and joint disease, migraine headaches, and traumatic brain injury is remanded. The Veteran has asserted on multiple occasions, including at his March 2021 Board hearing, that "they can't find my records for me in Germany". While this was asserted in relation to an ankle disability that is not currently before the Board, he has explicitly asserted that there are outstanding service treatment records. He also asserted that he had been treated for his knee(s) at a VA facility in Columbia, South Carolina. While it appears that this treatment may have occurred outside of the appeal period, the Board is unable to determine this as it does not appear that there are VA treatment records from that VA facility currently associated with the claims file. When requesting relevant records from a federal department or agency, VA is obliged to continue to attempt to obtain the records until they are located, unless the records do not exist, or further attempts would be futile. See 38 U.S.C. § 5103A (c). If there are in-service or post-service VA treatment records that are unavailable, this should be explicitly stated in a formal finding of unavailability that is generated on remand. Otherwise, any outstanding treatment records from the Veteran's active duty service or from VA facilities following his release that are relevant to the issues on appeal should be obtained and associated with the claims file. It was also asserted at the Veteran's Board hearing that he requested and has been awarded SSA benefits based on his service-connected condition(s). Accordingly, on remand the Veteran's SSA records should be obtained and associated with the evidence of record before the Board. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (holding that where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records). In addition, while the Veteran was afforded a VA examination in relation to his claimed back condition in October of 2019, that examiner provided as rationale in an accompanying negative nexus opinion that, "his reported lightning strike occurred 8/1982 but his separation PE 11/1982 denies any back pain, He had one entry for back pain in (?1983). There is a 45+ year interval from his separation until today's exam and there is not enough documentation to establish a relationship between his current back pain and his military career." However, the Board cannot make a fully-informed decision on that matter until it is remanded to obtain a new VA examination and accompanying opinion that complies with the caselaw that mandates that an examiner cannot rely solely on the absence of medical records corroborating an in-service injury or disease as the sole basis for finding no nexus between a current disability and the Veteran's military service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Board also notes that the Veteran was afforded a VA examination in relation to his claimed TBI condition in April of 2016 at which time he "reported that he believes a misunderstanding has happened as he does not wish to file a claim for a TBI." The Board observes that the Veteran subsequently alleged at his Board hearing that he had an in-service lightning strike that led to headaches and other personality-related changes, claimed symptoms that are alleged to be implications of an asserted TBI. The Board also observes that in this case, the Veteran is already service-connected for PTSD and is concurrently seeking service connection for headaches. A remand for a VA examination is necessitated as it is unclear whether the Veteran has any psychiatric or headache-related symptomatology that is separate and distinct from that which he is already being compensated for. Significantly, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. See 38 C.F.R. § 4.14. Thus, if TBI and/or a migraine condition is affirmatively indicated on remand, the symptoms attributable to this condition alone, if any, should be explicitly differentiated from those attributable to his service-connected PTSD. Lastly, the Veteran was most recently afforded an examination in regard to his knees in July of 2019. However, it does not appear that an opinion was obtained in regard to his claimed right knee condition at that time (although the Board notes that an opinion was previously obtained in December of 2015 that did not address the aggravation prong of secondary service connection). Given the assertions made above in regard to outstanding treatment records regarding these conditions, the Board finds that affording the Veteran the opportunity to attend a new VA examination is also necessary to ensure that VA has an accurate depiction of the Veteran's disability picture. The matters are REMANDED for the following actions: 1. Obtain any outstanding service treatment records and/or VA treatment records (including from the Columbia, South Carolina RO) relevant to the issues on appeal and associate them with the claims file. All attempts to fulfill this development must be documented in the claims file, including if any conducted search for these records is negative. If any records that were once in possession of VA are determined to be unavailable, the AOJ must document all search efforts in a Formal Finding of Unavailability Memorandum, notify the Veteran and his representative, and associate this Memorandum with the evidence of record. 2. Undertake appropriate development to obtain a copy of any SSA disability determination for the Veteran, as well as a copy of the records associated with any such determination. 3. Following the completion of step one, schedule the Veteran for VA examinations to determine the nature and etiology of any (a) left knee instability, (b) right knee degenerative arthritis, (c) lumbar spine degenerative disc and joint disease, (d) migraine headaches, and (e) traumatic brain injury. The entire claims file, to include a complete copy of this REMAND, must be made available to the individuals designated to examine the Veteran, and the examination reports should include discussion of the Veteran's documented medical history and lay assertions as well as a confirmation that the record was reviewed. All necessary special studies or tests must be accomplished. Following a review of the evidence of record, to include the Veteran's lay statements, the clinician should opine in regard to each condition: The examiner should opinion whether it is at least as likely as not (a 50 percent or greater probability) that the disability had an onset in service or is otherwise related to an in-service injury, event, or disease. In so opining, the clinician is specifically asked to address, to the extent possible, the Veteran's asserted in-service lightning incident as well as his accounts of jumping as a parachutist. In regard to the Veteran's claimed (a) left knee instability, (b) right knee degenerative arthritis, and (c) lumbar spine degenerative disc and joint disease, the clinician is additionally asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's claimed condition is (i) proximately due to OR is (ii) aggravated beyond its natural progression by his service-connected left knee condition. In regard to the Veteran's claimed (d) migraine headaches and (e) traumatic brain injury, the examiner should explicitly state whether the Veteran has a traumatic brain injury and/or the residuals thereof or has had a diagnosis at any point during the period on appeal AND it should be indicated whether this represents a separate and distinct condition from his alleged migraine headaches. If a diagnosis is affirmatively indicated, he or she should indicate any symptoms attributable to any identified condition alone, if any. The examiner should distinguish between any symptoms attributable to any non-service-connected head-related condition (including alleged psychiatric and/or headache issues) and those attributable to his already service-connected PTSD. A complete rationale must be provided for all opinions. This rationale cannot be solely predicated solely on the absence of in-service evidence but must consider the broader evidentiary picture, including lay evidence. 4. If the benefits sought remain denied, issue the Veteran and his representative a (SSOC) and provide a reasonable opportunity to respond before returning these matters to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Smith, 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.