Citation Nr: 21073550 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-30 125 DATE: December 9, 2021 REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for a bilateral ankle disorder is remanded. Entitlement to service connection for a bilateral knee disorder is remanded. Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2000 to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The Board remanded the case for further development in May 2019. The case has since been returned to the Board for appellate review. The Board notes that the appeal had originally included the issues of entitlement to service connection for tinnitus and an acquired psychiatric disorder. However, in a September 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for tinnitus and posttraumatic stress disorder (PTSD). The award of service connection constitutes a full grant of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Therefore, those issues are no longer on appeal before the Board. Upon review, the Board finds that additional development is needed prior to adjudication of the issues remaining on appeal. A December 2019 VA examiner opined that the Veteran's headaches, bilateral ankle disorder, bilateral knee disorder, and low back disorder were less likely than not related to her military service because there was no pattern of chronicity during or after service. However, he did not explain the significance of that finding or specifically address whether any delayed-onset could still be related to an injury or symptomatology in service. Rather, he appears to have only addressed whether the current disorders manifested in service. The December 2019 VA examiner also opined that the Veteran's tension headaches were not caused or permanently aggravated by her service-connected PTSD. He also stated that it was less likely than not that her right ankle disorder was caused by or permanently aggravated by her left ankle disorder. In Ward v. Wilkie, 31 Vet. App. 233 (2019), the Court of Appeals for Veterans Claims (the Court) held that the aggravation prong of secondary service connection requires a worsening of the claimed disorder, but not a permanent worsening of the claimed disorder. Rather, compensation under 38 U.S.C. §§ 1110 and 1131 and 38 C.F.R. § 3.310(b) is due for any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). For these reasons, the Board finds that an additional medical opinion is needed to determine the etiology of the disorders. The matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a bilateral knee disorder, a bilateral ankle disorder, a low back disorder, and headaches that are not already of record. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also request any outstanding VA treatment records. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a medical opinion as to the nature and etiology of her headaches. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's headaches manifested in service or are otherwise causally or etiologically related to the Veteran's military service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should specifically consider the May 2002 and August 2003 service treatment records wherein the Veteran reported having headaches. The examiner should also consider the Veteran's report that she experienced headaches after deployment to Iraq and being involved in an explosion. See November 2013 and July 2017 VA treatment records. In addition, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran's headaches were either caused by or aggravated by her service-connected PTSD. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's PTSD did not cause her headaches, the examiner should still address whether her PTSD could have worsened her headaches. The examiner should note that the aggravation prong of secondary service connection requires a worsening of the claimed disorder, but not a permanent worsening of the claimed disorder. The law provides that compensation is due for any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a medical opinion as to the nature and etiology of her bilateral ankle disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's bilateral ankle disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should specifically consider the Veteran's December 2018 testimony in which she reported having injured her ankles in service. The examiner should also consider the Veteran's testimony that her left ankle injury caused her to put stress on and weaken her right ankle. The examiner should also consider the December 2018 statement from S.A. (initials used to protect privacy), who stated that the Veteran fell during a road march in basic training, twisted her left ankle, and was taken to sick call. He or she should further consider the December 2018 statement from J.T., who stated that the Veteran fell during physical training and was limping during her deployment to Iraq in 2003. In addition, examiner should consider the VA treatment records indicating a history of left ankle sprains and x-rays showing possible sequelae of remote trauma to the left foot/ankle. See April 2013 and June 2013 VA treatment records. The examiner should also state whether it is at least as likely as not that any right ankle disorder was either caused by or aggravated by any left ankle disorder. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's left ankle disorder did not cause a right ankle disorder, the examiner should still address whether her left ankle disorder could have worsened her right ankle disorder. The examiner should also note that the aggravation prong of secondary service connection requires a worsening of the claimed disorder, but not a permanent worsening of the claimed disorder. The law provides that compensation is due for any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a medical opinion as to the nature and etiology of her bilateral knee disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's bilateral knee disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should specifically consider the Veteran's December 2018 testimony wherein she reported having injured her knees in service. The Veteran testified that, when she twisted her left ankle, she landed on her knees and experienced clicking and weakness in the knees during service. The examiner should also consider the December 2018 statements from J.T. and S.A. regarding falls during physical training in service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. After completing the foregoing development, the AOJ should refer the Veteran's claims file to a VA examiner for a medical opinion as to the nature and etiology of her low back disorder. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran's low back disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service, to include any injury or symptomatology therein. In rendering this opinion, the examiner should specifically consider the Veteran's December 2018 testimony in which she reported having injured her back in service while engaging in heavy lifting. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. The AOJ should review the reports to ensure compliance with this remand. If the reports are deficient in any manner, the AOJ should implement corrective procedures. 7. The AOJ should conduct any other development as may be indicated. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.