Citation Nr: 21070671 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-56 892 DATE: November 24, 2021 REMANDED Entitlement to service connection for cephalgia (headaches) is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a bilateral leg disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1968 to May 1970. These matters are on appeal from November 2013, August 2014, and July 2015 rating decisions and were previously remanded by the Board of Veterans' Appeals (Board) in December 2018. In an October 2020 decision, the Board denied the claims of service connection for a thoracolumbar spine disability, right knee disability, bilateral leg disability, and posttraumatic stress disorder (PTSD); granted service connection for an acquired psychiatric disorder, other than PTSD; and remanded the claims of service connection for cephalgia and entitlement to a TDIU. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) and in an April 2021 Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the Board's October 2020 decision that denied entitlement to service connection for: thoracolumbar spine, right knee, and bilateral leg disabilities, and remanded those issues for additional development and readjudication consistent with the terms of the JMPR. The Veteran did not challenge the Board's denial of entitlement to service connection for PTSD. All issues Initially, in December 2018, the Board remanded all the Veteran's claims for additional development which included obtaining any outstanding records of pertinent medical treatment from VA from February 2017 and private health care providers, including Orthopaedic Associates. While the Veteran subsequently submitted private treatment records to VA in January 2019, VA did not provide the Veteran with the authorization forms needed to obtain his records directly from his treatment providers. Accordingly, on remand, such should take place. Entitlement to service connection for cephalgia (headaches) The Veteran contends that his headaches had onset around 1969 during service following a fall. He reported that they were self-treated, persisted, and that he had not been under a doctor's care for them. See November 2019 VA examination. Alternatively, the record has raised the possibility that the Veteran has headaches related to the medication (escitalopram) he takes for his service-connected acquired psychiatric disorder. See October and November 2019 VA treatment records. VA obtained medical opinions in November 2019 and in December 2020 and the Veteran submitted a private opinion authored by Dr. P.J.Y. in April 2015. Regrettably, as no opinion is adequate to decide the claim, the Board will again remand the issue. The Board previously noted that Dr. P.J.Y.'s opinion did not provide an adequate medical explanation or rationale in support of the opinion. The Board also found that the November 2019 examiner failed to consider the contention that the Veteran self-treated his headaches and further, did not consider the Veteran's reports of falling in service as well as the findings of Dr. P.J.Y. Accordingly, another opinion was obtained in December 2020. However, the December 2020 VA examiner also failed to consider the Veteran's contention that he self-treated his headaches in and after service and therefore did not report them upon separation from service. Also, the examiner's opinions regarding secondary service connection appear inconsistent. Accordingly, another opinion should be obtained. Entitlement to service connection for a thoracolumbar spine disability The Veteran contends that his back pain had onset in service due to lots of marching and standing at attention with an M-14 on his shoulders. See August 2017 Statement in Support of Claim. VA most recently provided the Veteran with a back examination in October 2019. As noted in the April 2021 JMPR, the VA examiner failed to provide a rationale for his rejection of the Veteran's statements regarding continuity of his back symptomatology or his conclusion that the Veteran's current back disability is due to his post-service employment, rather than his reported in-service injury. Accordingly, an addendum opinion should be obtained. Entitlement to a TDIU The matter of entitlement to a TDIU is inextricably intertwined with the claims for service connection remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the TDIU claim is therefore required. The matters are REMANDED for the following action: 1. Contact the Veteran and provide him with a VA Form 21-2142, Authorization and Consent to Release Information to VA, to obtain any relevant private treatment records, including from Orthopaedic Associates. Advise the Veteran that he may submit any private treatment records if he so chooses. If a negative response is received from the Veteran, or any private treatment provider, the claims file should be properly documented in this regard. 2. Obtain an addendum opinion from an examiner other than the one who provided the December 2020 opinion addressing the etiology of the Veteran's headaches. It is left to the discretion of the selected examiner whether an in-person examination is necessary. After a complete review of the claims file, the examiner should answer the following: (a.) Is it at least as likely as not (approximately 50 percent probability) that any cephalgia or headache disability had onset during active service, or is otherwise related to any in-service injury? The examiner must address the Veteran's contentions that he fell in service, self-treated his headaches because he feared retribution in service if he reported injury, and that his headaches have persisted to the present. Also, the examiner must consider all lay assertions, to include as to the nature, onset and continuity of symptoms. If there are medical reasons to either support or call into question the Veteran's assertions of experiencing longstanding headaches, the examiner should so state, with supporting explanation. (b.) Is it at least as likely as not (approximately 50 percent probability) that any cephalgia or headache disability has been caused or aggravated by the Veteran's service-connected psychiatric disability, to include any medication taken for that disability? 3. Obtain an addendum opinion from an examiner other than the one who provided the October 2019 opinion addressing the etiology of the Veteran's current lumbar spine disabilities. It is left to the discretion of the selected examiner whether an in-person examination is necessary. After a complete review of the claims file, the examiner should answer the following: Is it at least as likely as not (a probability of 50 percent or greater) that any currently diagnosed lumbar spine disability had onset in, or is otherwise related to the Veteran's period of active service? The examiner must consider and address the Veteran's contentions that he fell in service and that he did a lot of marching and standing at attention at times with an M-14 on his shoulders, which resulted in back pain. The examiner must also address the findings of Dr. P.J.Y., and if the examiner disagrees with the findings, must explain, from a medical perspective the bases for disagreement. Finally, the examiner must address the Veteran's statements regarding a continuity of his back symptomatology since service and address the relevance, if any, of his post-service employment as a tire inspector. (Continued on Next Page) 4. Then, readjudicate the issues on appeal, to include entitlement to a TDIU. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.