Citation Nr: 21072485 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-07 911 DATE: December 3, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for migraine headaches, to include as secondary to service connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. FINDINGS OF FACT 1. The Veteran canceled the VA examinations scheduled in November 2019 and has not presented good cause for her failure to respond to such attempts or expressed a willingness to attend such VA examinations. 2. At no time during the pendency of the claim does the Veteran have a diagnosis of a lumbar spine disorder, and the record does not contain a recent diagnosis of such disability prior to the Veteran's filing of a claim. 3. The Veteran's migraine headaches did not manifest in service or for many years thereafter, and the preponderance of the evidence is against a finding that such disability is etiologically related to a disease or injury in service and is not caused or aggravated by service connected PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.655. 2. The criteria for service connection for migraine headaches, to include as secondary to service connected PTSD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2004 to October 2007. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Muskogee, Oklahoma. Jurisdiction of this appeal is currently with the RO in Portland, Oregon. This case was most recently before the Board in January 2019, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the matters were remanded to obtain updated VA treatment records and to obtain an etiology opinion as to the Veteran's claimed lumbar spine disorder and migraine headaches. Updated VA treatment records have been associated with the record. A September 2019 letter informed the Veteran that a VA medical facility would be contacting her to schedule an examination in connection with her appeal and that the failure to report for an examination without good cause may be denied. Although the RO contacted the Veteran to schedule these examinations, she declined them. The Board therefore finds that there has been substantial compliance with its previous remand. The case has now been returned to the Board for appellate action. Additional evidence, to include updated VA treatment records, was added to the record after the issuance of the May 2020 supplemental statement of the case. Such evidence has not been considered by the agency of original jurisdiction (AOJ). The Veteran waived initial AOJ consideration of this evidence in October 2021. See 38 C.F.R. § 20.1304. Service Connection Claims Lumbar Spine Disorder and Migraine Headaches The Veteran seeks entitlement to service connection for a lumbar spine disorder and migraine headaches. With regards to her lumbar spine disorder, the Veteran asserts that it was due to deployment, medical problems progressing over time and as due to repetitive motions, bearing weight, strenuous activities and ruck marches, countless and repetitive running, and wearing full gear. See VA Form 9, February 3, 2017. With regards to her migraine headaches, she asserts that such disorder is due to disrupted sleep as a result of her service-connected PTSD. See e.g. VA Form 21-4138 Statement in Support of Claim, November 7, 2015. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability"). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that §§ 1110 and 1131's requirement of the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also McClain v. Nicholson, 21 Vet. App. 319, 323 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). Consequently, the evidence of record must show that the Veteran currently has the disability for which benefits are being claimed. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records are negative as to complaints of, treatment for, or diagnoses of any disorder related to the lumbar spine and migraine headaches. Post service treatment records confirm a diagnosis of migraine headaches including migraine variants. See e.g. VA examination report, July 23, 2015. Additionally, post service treatment records document complaints of and treatment for back pain. See e.g. VA treatment record, August 8, 2020. The Veteran was afforded VA examinations in July 2015 for her lumbar spine and migraine headaches. With regards to her lumbar spine disorder, the VA examiner opined that the Veteran did not have a current diagnosis for a lumbar spine disorder. At that time, the Veteran reported that her lumbar spine condition was due to working as a cargo handler during active service but denied any traumatic injury to her lower back and did not seek medical attention. She denied flare-ups of the low back and she denied having any functional loss or functional impairment of the thoracolumbar spine. Range of motion measurements were abnormal for the back. The examiner remarked that there was no evidence of flare-up of the back, therefore no opinion of functional loss and additional limitation of range of motion would be given. An opinion as to the nature and etiology of any currently present lumbar spine disorder was not provided at this time. With regard to her migraine headaches, the VA examiner diagnosed migraine headaches including migraine variants. An opinion as to the nature and etiology of the migraine headaches was not provided at this time. The Board notes that the claims file contains several statements submitted in support of the Veteran's claims for entitlement to service connection for a lumbar spine disorder and migraine headaches, to include from the Veteran and her family. September 2015 statements submitted by the Veteran's husband and daughter indicate that the Veteran has difficulty with sleep resulting in migraines, and that she treats the headaches with over the counter medications. The Veteran asserts that she suffers from chronic sleep impairment due to her PTSD, and that such results in experiencing migraine headaches. See Notice of Disagreement, September 22, 2015; see also VA Form 9, February 3, 2017. Additionally, she asserts that she has a lumbar spine disorder due to constant use and progression over time. Id. Moreover, the Veteran asserted her lumbar spine disorder manifested with interference with sitting, activities with her children, and pain. See VA Form 21-4138 Statement in Support of Claim, November 7, 2015. As noted above, the claims for entitlement to service connection for a lumbar spine disorder and migraine headaches were most recently before the Board in January 2019. At that time, the claims were remanded to the RO for further development. Specifically, the January 2019 Board directed the RO to afford the Veteran additional VA examinations in connection with her claim, and to obtain adequate VA opinions as to whether the Veteran's back pain caused functional impairment due ot her active duty service, and as to whether the Veteran's migraine headaches were proximately caused by her service-connected PTSD. The Veteran was notified in a September 2019 letter that such VA examinations would be scheduled at a VA medical center nearest her. See Subsequent Development Letter, September 17, 2019. The directed VA examinations were scheduled in November 2019. A review of the claims file shows that the Veteran declined to attend the VA examinations without explanation. See VA Form 21-2507a, Request for Physical Examination, November 15, 2019. The Board notes that the Veteran has not requested that the examinations be rescheduled nor has she indicated a willingness to attend any other scheduled examinations. Based on the foregoing, the Board finds that service connection is not warranted for a lumbar spine disorder and/or migraine headaches. The record does not establish a causal link between the Veteran's service and her claimed lumbar spine disorder and/or migraine headaches. Applying 38 C.F.R. § 3.655 (a) and (b) to the facts of this case, as the Veteran failed to report for VA examination without good cause, the regulation states that the Veteran's claim "shall be rated based on the evidence of record." The Veteran's claim for service connection for a lumbar spine disorder and migraine headache disorder were original compensation claims and will be decided based on the evidence of record. I. Analysis Lumbar Spine Disorder The Board concludes that the Veteran does not have a current diagnosis of a lumbar spine disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service treatment records are negative for any complaints, treatments, or diagnoses relating the lumbar spine. The Veteran does not claim, nor do her clinical records show that she experiences, any functional impairment due to her low back. Notably, although the Veteran was shown to have abnormal range of motion measurements at her July 2015 VA examination, the Veteran denied flare-ups, functional loss, or functional impairment of the thoracolumbar spine. As noted above, the record shows that pursuant to the January 2019 Board remand, the Veteran was scheduled for a VA examination for her claimed lumbar spine disorder. The Veteran was informed in a letter dated September 2019 that a VA examination would be scheduled in connection with her claim, that a claimant that fails to report to an examination without good cause will have their claim rated based on the evidence of record and that she was to contact the medical facility on the appointment notice as soon as possible if she was unable to keep the appointment. Such examination was necessary to determine the nature and etiology of her lumbar spine disorder. The Veteran failed to report to this examination. In fact, the record reflects that the Veteran requested cancellation of ger VA examination. See VA Form 21-2507a, Request for Physical Examination. The record does not show that she was incarcerated at this time or in in-patient treatment for a medical condition. The record does not indicate that she was otherwise unable to attend this examination. The Veteran has not provided good cause for her failure to attend the examination nor has she requested that a new examination be scheduled. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record. 38 C.F.R. § 3.655(a). The Board notes that a claimant has some responsibility to cooperate in the development of all facts pertinent to her claim and that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the present case, the Veteran has not appeared for the scheduled VA examination, which is necessary to determine whether she is entitled to disability benefits. As the record does not reflect a current diagnosis related to a lumbar spine disorder the cornerstone element of service connection has not been met, and service connection is not warranted. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). No further discussion of the remaining elements is necessary. The Board acknowledges the Court's holding in Saunders but does not find a basis for determining that there is functional impairment related to a diagnosis of a lumbar spine disorder. See Saunders v. Wilkie, 886 F.3d. 1356 (2018). Moreover, the Veteran has not alleged manifestations of similar severity, frequency and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8 (2020). In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. The Veteran contends that her lumbar spine disorder is due to her service. As a lay person, the Veteran is competent to report observable symptoms, such as back pain. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, while the Veteran is competent to report having experienced symptoms of a lumbar spine disorder, she is not competent to opine on the etiology of the condition and/or to determine that these symptoms are somehow related to either her active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, as the preponderance of the evidence is against the Veteran's claim for service connection for a lumbar spine disorder, the Board finds that the Veteran's claim must be denied. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. II. Analysis Migraine Headaches The Board concludes that there is not a nexus between the Veteran's migraine headaches and her service and/or service connected PTSD. Service treatment records are negative for any complaints, treatments, or diagnoses relating migraine headaches. There is no clinical evidence suggesting that the Veteran's migraine headaches manifested within one year of the Veteran's service discharge in October 2007. The Veteran was not shown to have complaints of, or treatment for, migraine headaches until 2015. Therefore, presumptive service connection for migraine headaches, to include based on continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. As noted above, the record shows that pursuant to the January 2019 Board remand, the Veteran was scheduled for a VA examination for her claimed migraine headaches. The Veteran was informed in a letter dated September 2019 that a VA examination would be scheduled in connection with her claim, that a claimant that fails to report to an examination without good cause will have their claim rated based on the evidence of record and that she was to contact the medical facility on the appointment notice as soon as possible if she was unable to keep the appointment. Such examination was necessary to determine the nature and etiology of her migraine headache disorder. The Veteran failed to report to this examination. In fact, the record reflects that the Veteran requested cancellation of ger VA examination. See VA Form 21-2507a, Request for Physical Examination. The record does not show that she was incarcerated at this time or in in-patient treatment for a medical condition. The record does not indicate that she was otherwise unable to attend this examination. The Veteran has not provided good cause for her failure to attend the examination nor has she requested that a new examination be scheduled. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim will be rated based on the evidence of record. 38 C.F.R. § 3.655(a). The Board notes that a claimant has some responsibility to cooperate in the development of all facts pertinent to her claim and that the duty to assist is not a one-way street. Wood v. Derwinski, supra. In the present case, the Veteran has not appeared for the scheduled VA examination, which is necessary to determine whether she is entitled to disability benefits. As a layman, the Veteran is generally not competent by training or experience to provide an etiology between the current claimed migraine headaches and service and/or service connected PTSD. The issue is medically complex and require specialized knowledge and experience with several areas of medical expertise, including orthopedics, as well as the ability to interpret laboratory and radiographic studies. Jandreau v. Nicholson, supra. A review of the other medical evidence of record shows complaints of, and treatment for the claimed migraine headache disorder but it provides no evidence linking the condition to the Veteran's active service. Similarly, apart from the Veteran's generalized belief that this this disorder is related to service, there is otherwise no lay evidence in support of a nexus either. Therefore, as the preponderance of the evidence is against the Veteran's claim for service connection for migraine headaches, the Board finds that the Veteran's claim must be denied. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND Service Connection Right Knee Disorder The Veteran contends that her right knee disorder is etiologically related to her active service. Specifically, the Veteran asserts that her right knee disorder is due to constant use and progression over time. See Notice of Disagreement, September 22, 2015. Additionally, she asserts that she experiences right knee pain. See VA Form 21-4138 Statement in Support of Claim, November 2, 2015. Finally, she asserts that she had a right knee disorder that may have begun after deployment and is due to excessive running on concrete and strenuous activities while in the miliary. See VA Form 9, February 3, 2017. As noted above, the claim was most recently before the Board in January 2019, at which time it was remanded to the RO for further development. Specifically, the January 2019 Board directed the RO to obtain a VA opinion as to the nature and etiology of her claimed right knee disorder. In this regard, the January 2019 Board remand noted that the July 2015 VA opinion was inadequate to decide the claim because the examiner found the Veteran did not have a currently diagnosed right knee disorder and failed to consider whether pain with functional impairment could be considered a disability for purposes of service connection as it related to her right knee. See Saunders v. Wilkie, supra. Accordingly, additional VA examination was required. The Veteran was afforded the directed VA examination in April 2021. At that time, the examiner opined that the Veteran's right knee strain was a musculoskeletal condition with a specific etiology and diagnosis that was less likely due to a significant injury or event in Southwest Asia. The examiner noted that the Veteran's service treatment records and post-service records were silent for any knee complaints. Therefore, the April 2021 VA examiner opined that, although objective examination findings were indicative for bilateral knee strains, given the silent service treatment records, no direct service nexus could be established. The Board finds the April 2021 VA opinion inadequate to decide the claim. In this regard, the examiner failed to adequately provide supporting rationale for the conclusions reached. Rather, the examiner provided a mere conclusory statement that the Veteran's right knee disorder was likely unrelated to her service in Southwest Asia because it was musculoskeletal in nature, and had a specific etiology and diagnosis, without further explanation. Additionally, the examiner's opinion appears to be based on an absence of treatment records in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board notes that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. Thus, the August 2021 medical opinion is afforded little, if any, probative weight. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. As such, remand is again required to afford the Veteran a VA examination that comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). Accordingly, the Board concludes that an additional VA examination for the Veteran's claimed right knee disorder should be afforded. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an etiology opinion as to the Veteran's claimed right knee disorder from an appropriate medical professional. The record must be made available to the examiner. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. Further physical examination is left to the discretion of the examiner. Thereafter, the examiner should respond to the following question: Is at least as likely as not (50 percent or greater probability) that the Veteran's right knee disorder had its onset during any period of service, or is otherwise related to such period of service, to include exposure to environmental hazards in Southwest Asia? The examiner is reminded that the absence of service treatment records cannot be the sole basis for rendering a negative nexus opinion. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.