Citation Nr: 21069789 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-17 362 DATE: November 19, 2021 November 19, 2021 REMANDED The claim for service connection for a right knee disability is remanded. The claim for service connection for a left knee disability is remanded. The claim for service connection for a back disability is remanded. The claim for service connection for headaches, to include as secondary to posttraumatic stress disorder, is remanded. The claim for service connection for a gastrointestinal disorder, however diagnosed, to include as secondary to posttraumatic stress disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1966 until her honorable discharge in December 1966. This appeal has been advanced on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). This case comes before the Board on appeal from July 2015 and May 2017 decisions by a Regional Office of the United States Department of Veterans Affairs (VA). In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In February 2021, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to (1) attempt to obtain any outstanding VA medical records and private medical records identified by the Veteran; and (2) obtain VA examinations and opinions addressing the etiology of the Veteran's headaches, bilateral knee disabilities, and gastrointestinal disorder. The case now returns to the Board. The Board finds that there has not been substantial compliance with the Board's previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Outstanding medical records Prior to the Board's February 2021, Remand Order, VA received VA Form 21-4142, Authorization for Release of Information, from the Veteran on December 18, 2020, from the Veteran. In it, the Veteran identified four medical providers who potentially had relevant medical records: Dr. E.T., Dr. T.J.F., Dr. T.F.L, and Dr. M.M. On December 24, 2020, VA issued a "Medical Records Request Reject Notice" for the reason that the submitted document was "illegible." Following the Board's Remand Order, the Veteran submitted two additional VA Forms 21-4142, Authorization for Release of Information. These were not the same as the form submitted on December 18, 2020. The Board finds no explanation within the record as to what occurred with the "Reject Notice." There is no indication VA informed the Veteran of the Reject Notice or that it requested further information from her to attempt to correct the Reject Notice. Consistent with the Board's duty to assist, remand is required to ensure all reasonable and necessary steps were taken to attempt to retrieve the identified medical provider records, if not already obtained. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 2. Bilateral knee disabilities The VA Regional Office obtained an examination from a VA-contracted examiner who was directed to evaluate the Veteran's bilateral knee disabilities. There is one medical examination of record dated April 17, 2021. This examination, however, specifically lists that only the Veteran's "left knee condition" was examined. While the examiner conducted testing on both knees, she did not record any information from the Veteran about the onset of, continuity of, or present symptoms associated with the right knee. In addition, the examiner only endorsed right knee arthritis, having been diagnosed in November 2009, even though the record suggests bilateral knee arthritis. See January 2021 VA Neurosurgery Note ("There is photopenia in both knees consistent with bilateral prosthesis with normal periprosthetic bone activity. There are sites of mildtomoderate increased uptake is noted in posterior calcanei and first metatarsophalangeal joints (left>right) consistent with degenerative changes."); August 2016 Esse Health Medical record (reporting bilateral knee osteoarthritis). The Board finds the VA examination is deficient in these respects. In addition, the examiner opined that she was "unable to say without mere speculation that the [Veteran's] bilateral knee disabilities occurred in service or are related to the in-service assault." Her only reasoning for the opinion is that her in-service treatment records are silent for any knee issues and there is no record of private medical care until 2002. The Board finds this reasoning deficient, thus requiring a new opinion on remand. The examiner failed to address any of the Veteran's lay statements within her opinion, offering no medical reason to discount them. The Board finds the rationale is merely conclusory and offers no explanation as to why she relied on certain facts and disregarded, or failed to address, other relevant facts. 3. Back disability During the Veteran's September 2020 Board hearing, she testified that she believed her back disability was generally due to the assault she suffered in active service for which she is service connected for PTSD. Her medical records indicate diagnoses including chronic spinal stenosis of the lumbar region, disc bulging, and arthritis. See April 2021 VA Neurosurgery Note. The VA Regional Office has not afforded her a VA examination to address this disability. And the Board mistakenly overlooked the need for such an examination in its prior remand. Therefore, based on the evidence of record, remand is necessary to obtain a VA medical examination and opinion addressing the etiology of the Veteran's back disability. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 4. Headaches The VA Regional Office obtained a VA-contracted examination, conducted on April 17, 2021, addressing the Veteran's headaches. The examiner recorded an April 30, 2020, diagnosis of tension headaches. As to direct service connection, the examiner opined that it was less likely than not that the Veteran's headaches were due to an in-service event, injury, or disease, to include assault. The examiner, however, only relied on the absence of in-service treatment for headaches. She never addressed the Veteran's own report of seeking in-service treatment for headaches or any other statements about continuity of symptoms. The results in a deficient opinion. The examiner also failed to address her own diagnosis of tension headaches; instead, she addressed the Veteran's Board testimony that she did not experience "migraine headaches." It appears the examiner's opinion only addresses migraine headaches and not the diagnosed tension headaches. This too results in a deficient opinion. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Finally, as to secondary service connection, the examiner offered a negative nexus opinion, but it too is deficient. The examiner again only relied on an absence of medical documentation of headaches until 2019 and did not address the Veteran's lay statements as to onset and continuity of symptoms. In addition, the examiner did not address the secondary theory of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 13840 (2013) (a medical opinion regarding secondary service connection must address both causation and aggravation to be adequate). For all of these reasons, remand is required. 5. Gastrointestinal disorder The VA Regional Office obtained a VA-contracted examination, conducted on April 17, 2021, addressing the Veteran's gastrointestinal disorder. The examiner recorded a diagnosis of gastroesophageal reflux disease (GERD) in 1970 (possibly). The examiner opined that the Veteran's GERD was less likely that not caused by the Veteran's service-connected PTSD. The examiner's rationale, however, is deficient. The examiner merely cited what she considered "conflicting" evidence of whether or not the Veteran had a gastrectomy. These are merely conclusory statements and offer no value to the Board when evaluating the probative value of the opinion. Furthermore, the examiner failed to offer any opinion as to the theory of aggravation when addressing secondary service connection. Thus, remand is required to obtain such an opinion. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Unless the VA Regional Office has already associated the medical provider records identified by the Veteran in her December 18, 2020, VA Form 21-4142, Authorization for Release of Information, take all reasonable and necessary steps to obtain the identified records. If clarification from the Veteran is required, the appropriate correspondence should be sent to the Veteran and her representative. All efforts undertaken to obtain the identified documents should be documented within the claims file. Reasonable attempts must be made to obtain relevant private medical records, if not already obtained. 3. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician other than the April 2021 examiner to provide an opinion addressing the onset and etiology of the Veteran's left and right knee disabilities. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Please identify all left knee disabilities the Veteran has experienced approximate to and during the pendency of the claim, beginning around January 2015. The examiner is informed pain alone can qualify as a disability where it diminishes the body's ability to function under the ordinary conditions of daily life, including employment, even where it is not diagnosed as connected to a current underlying condition. Saunders v. Wilkie, 886 F.3d 1356 (2018). (b.) Please identify all right knee disabilities the Veteran has experienced approximate to and during the pendency of the claim, beginning around January 2015. The examiner is informed pain alone can qualify as a disability where it diminishes the body's ability to function under the ordinary conditions of daily life, including employment, even where it is not diagnosed as connected to a current underlying condition. Saunders, 886 F.3d 1356. (c.) For each identified left knee disability, whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include the Veteran's in-service assault. (d.) For each identified right knee disability, whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include the Veteran's in-service assault. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) November 2002 VA Primary Care Women's Health Note documenting bilateral knee pain and osteoarthritis. (b.) August 2009 private medical records from Dr. T.F. documenting right knee degenerative joint disease. (c.) The Veteran's VA Medical Records Problems List, which lists knee osteoarthritis, and bilateral total knee replacements. (d.) The Veteran's January 2015 statements and September 2020 Board hearing testimony indicating she believes that her bilateral knee issues stem from her in-service assault where she was forcefully pushed to the ground and had to defend herself. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of her knee disabilities, including any evidence concerning continuity of symptomatology, as she legally permitted to report her symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of bilateral knee disabilities in service or the assertion that an in-service event, injury, or illness led to current bilateral knee disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 4. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician other than the April 2021 examiner to provide an opinion addressing the onset and etiology of the Veteran's back disability. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding the following: (a.) Please identify all back disabilities the Veteran has experienced approximate to and during the pendency of the claim, beginning around January 2015. The examiner is informed pain alone can qualify as a disability where it diminishes the body's ability to function under the ordinary conditions of daily life, including employment, even where it is not diagnosed as connected to a current underlying condition. Saunders v. Wilkie, 886 F.3d 1356 (2018). (b.) For each identified back disability, whether it is at least as likely as not (50 percent probability or more) that such disability had its onset in or is otherwise etiologically related to an in-service event, injury, or disease, to include the Veteran's in-service assault. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) November 2002 VA Primary Care Women's Health Note documenting back pain and the Veteran's statements. (b.) November 2013 medical record from Mid County Orthopaedic documenting MRI results of the spine. (c.) Private medical records from Esse Health recording diagnoses of "spinal stenosis, lumbar region, chronic." (d.) The Veteran's January 2015 statements and September 2020 Board hearing testimony indicating that she believes that her back issues stem from her in-service assault where she was forcefully pushed to the ground and had to defend herself. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of any back disabilities, including any evidence concerning continuity of symptomatology, as she legally permitted to report her symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of back disabilities in service or the assertion that an in-service event, injury, or illness led to current back disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician other than the April 2021 examiner to provide an opinion addressing the onset and etiology of the Veteran's headaches. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding: (a.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's headaches had their onset in or are otherwise etiologically related to an in-service event, injury, or disease, to include her in-service personal assault. (b.) Whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed headaches were caused by (proximately due to or as the result of) her service-connected posttraumatic stress disorder (PTSD). (c.) Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's currently diagnosed headaches were aggravated by her service-connected PTSD. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. In rending his or her opinion, the examiner should consider and, if deemed relevant, address the following, in addition to any other relevant evidence: (a.) A March 2015 Statement in Support of Claim for PTSD in which the Veteran reported experiencing headaches after her in-service assault and the continuity of symptoms to the present. (b.) The Veteran's September 2020 Board testimony that she experienced headaches following her assault, and she sought treatment in service, and they have continued since service. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of her headaches, including any evidence concerning continuity of symptomatology, as she is legally permitted to report her symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of headaches in service or the assertion that her service-connected posttraumatic stress disorder disability led to her current headaches. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 6. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician other than the April 2021 examiner to provide an opinion addressing the onset and etiology of the Veteran's gastrointestinal disorder. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner is asked to provide an opinion regarding: (a.) Please identify all gastrointestinal disorders the Veteran has experienced approximate to and during the pendency of the claim, beginning around March 2017. (b.) For each identified gastrointestinal disorder, whether it is at least as likely as not (50 percent probability or more) such disability was caused by (proximately due to or as the result of) her service-connected posttraumatic stress disorder (PTSD). (c.) For each identified gastrointestinal disorder, whether it is at least as likely as not (50 percent probability or more) such disability was aggravated by her service-connected PTSD. The examiner is advised "aggravation" means any increase in the severity of the underlying disability beyond its natural progression. The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of her gastrointestinal disability, including any evidence concerning continuity of symptomatology, as she is legally permitted to report her symptoms, past medical history, and experiences. The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertion of that her service-connected posttraumatic stress disorder disability led to a gastrointestinal disability. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied. The examiner is informed that reliance on a lack of treatment and/or gap between discharge from military service and diagnosis of a disability, without explaining why such evidence is significant, is an insufficient rationale. The examiner is informed that the absence of contemporaneous service treatment records or medical records in general, standing alone, without explaining why such evidence is significant, is an insufficient rationale. (Continued on the next page) If the examiner relies on medical treatises, the examiner should identify the treatises. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.