Citation Nr: 21075387 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-35 399 DATE: December 20, 2021 ORDER 1. Entitlement to service connection for a right knee disability is granted. 2. Entitlement to service connection for a right hip disability is granted. REMANDED 1. Entitlement to an initial compensable rating for tension headaches is remanded. 2. Entitlement to a rating in excess of 30 percent for traumatic brain injury (TBI) residuals, prior to April 11, 2017, and in excess of 40 percent thereafter, is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence reflects the Veteran's right knee disability was incurred as a result of his military service. 2. The preponderance of the evidence reflects the Veteran's right hip disability was incurred as a result of his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for a right hip disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to April 1985. He is in receipt of the Parachutist Badge and Combat Infantryman Badge. These matters are before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Service Connection Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). In general, service connection requires competent evidence showing: (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). Entitlement to service connection for right knee and right hip disabilities has been met. The Veteran seeks service connection for disabilities of his right knee and right hip, which he contends are the result of parachute jumps during his military service. The Veteran has been diagnosed with osteoarthritis of his right knee and right hip, as well as a joint replacement of his right hip. See April 2017 VA Examination Report. See May 2016 VA Examination Report. Thus, the first element of direct service connection is met. The Veteran's DD 214 confirms that he served in the military as a paratrooper. The available documentation corroborates the Veteran's reports of the physical aspects of his military service, and in July 2021, a private medical opinion was provided by the Veteran. Following a review of the claims file, the private treatment provider concluded that it was at least as likely as not that the Veteran's right knee and hip conditions were related to the repetitive physical stresses he experienced as a paratrooper. In providing these opinions, the examiner noted that the trauma to the bony area of the hip, due to parachute jumps, commonly resulted in hip conditions such as that of the Veteran. He further explained that anterior knee pain syndrome, as in the Veteran's case, was regularly found in paratroopers. As this opinion contained a strong rationale in support of the conclusions, it is afforded great probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). The Board is persuaded by the private examiner's July 2021 opinion that considered the Veteran's medical history, as corroborated by documentary evidence, and reflected an understanding of the circumstances of the Veteran's case. The Board acknowledges the negative April 2017 VA medical opinions, but notes they were not accompanied by adequate supporting rationales. Accordingly, when resolving all doubt in the Veteran's favor, the Board finds that service connection for a right knee and right hip disability is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND As an initial matter, the Board notes that the Veteran's representative has requested the curriculum vitae (CV) of the VA examiners. To date, the RO has not provided the Veteran or his representative with the requested information. In Francway v. Wilkie, the Federal Circuit held that if a veteran requested information regarding the examiner's qualifications, VA must, absent unusual circumstances, provide information concerning the examiner's qualifications as part of the duty to assist. 930 F.3d 1377, 1380 (Fed. Cir. 2019). Accordingly, a remand is warranted to obtain, associate with the claims file, and provide to the Veteran and his representative for review the 2017 VA examiners' CVs and any other additional information regarding their qualifications. 1. Entitlement to an initial compensable rating for tension headaches is remanded. The evidence shows that the Veteran received a VA examination for his headaches in April 2017. At the June 2021 Board hearing, the Veteran testified that his condition had worsened. He also submitted a statement from a private treatment provider, which suggested that the headache condition warranted a higher rating. The Board notes, however, that the private treatment provider did not examine the Veteran to evaluate this condition. Therefore, as the evidence reflects the Veteran's service-connected tension headaches may have worsened, a remand is warranted to obtain an examination to determine the current severity of the Veteran's headaches. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). 2. Entitlement to a rating in excess of 30 percent for TBI residuals, prior to April 11, 2017, and in excess of 40 percent since thereafter, is remanded. The most recent VA examination for the Veteran's service-connected TBI residuals was in April 2017. At the June 2021 Board hearing, the Veteran testified that his TBI symptoms had worsened. He also submitted an opinion from a private treatment provider in September 2021, which reflected that his residual symptoms had increased in severity. While the Board acknowledges the September 2021 private medical opinion, the private physician did not address the level of severity of all facets of the TBI as set forth in the rating criteria. Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected residuals of a TBI, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See 38 C.F.R. § 5103A; 38 C.F.R. § 3.159; See Snuffer, supra. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide a veteran with a thorough and contemporaneous medical examination). 3. Entitlement to a TDIU is remanded. Regarding the Veteran's claim for a TDIU, as discussed above, the Board has granted the Veteran's claims for service connection for right knee and right hip disabilities in this decision. The AOJ will assign disability ratings for these disabilities in the first instance. Clearly, the AOJ has not had the opportunity to consider the Veteran's TDIU claim in light of the Board's grant of service connection for right knee and right hip disabilities. Additionally, the Board notes that further development and adjudication of the Veteran's claims for increased ratings may provide evidence in support of his claim for TDIU. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. The matters are REMANDED for the following action: 1. Document for the record all attempts to: (a) Obtain copies of the CVs of the 2017 VA examiners and any other available information regarding the examiners' qualifications AND provide the Veteran and his representative with copies; and (b) Associate any such information with the claims file. If the requested information is not obtainable, the Veteran and his representative should be notified, and the reasons for such should be documented in the record. 2. Obtain any outstanding VA treatment records and associate them with the Veteran's claims folder. 3. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected tension headaches. The entire claims file must be made available to, and must be reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner is asked to describe the frequency of the Veteran's headaches, the characteristics of his prostrating attacks, and whether his prostrating attacks result in severe economic inadaptability. The examiner should also provide an opinion regarding the level of functional impairment caused solely by the Veteran's tension headaches. 4. Afford the Veteran a VA examination to evaluate the severity of his TBI. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner is asked to review the complete, electronic file, including the September 2021 private evaluation. If possible, the examiner is asked to comment upon the severity of the facets of the Veteran's TBI since January 2012. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should also provide an opinion regarding the level of functional impairment caused solely by the Veteran's TBI residuals. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.