Citation Nr: 21011504 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-24 319 DATE: March 2, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability (limited flexion) is remanded. Entitlement to a compensable rating prior to September 10, 2018, and in excess of 20 percent thereafter for a left knee disability (instability) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Navy from July 1990 to February 1993. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference Board hearing in September 2018; a transcript is of record. Subsequently, in May 2019, the Board granted a 20 percent rating for a left knee disability (instability) effective September 10, 2018; denied a rating in excess of 10 percent for a left knee disability (limited flexion); denied a rating in excess of 10 percent for a left wrist disability; and remanded the claim for service connection for migraine headaches. In August 2020, the increased ratings for the Veteran’s left knee disability were vacated and remanded by the U.S. Court of Veteran’s Claims (Court). The increased rating issues for the left knee were remanded to schedule an examination consistent with Correia and address whether a rating for instability was warranted prior to September 10, 2018. 1. Entitlement to service connection for migraine headaches is remanded. This matter was previously remanded by the Board to obtain an examination and opinion. The Veteran testified at the Board hearing he fell approximately 10 to 15 feet in service and also hit his head. However, as his wrist was most injured, he focused on that injury. He also explained he began to have headaches, and did not realize they were migraines. He reported that he has had them since he hit his head and did not initially seek treatment as he took over the counter medication and he thought his headaches were something that he would just deal with. A July 2020 examiner provided a negative nexus opinion. In support, she explained that his medical treatment records were absent for headache complaints after his fall. However, the examiner relied on the absence of medical documentation in the claims record to support her finding and did not address the Veteran’s contentions. As such, the Board finds that an additional addendum opinion or examination that adequately addresses his assertions is required. 2. Entitlement to a rating in excess of 10 percent for a left knee disability (limited flexion) is remanded. 3. Entitlement to a compensable rating prior to September 10, 2018, and in excess of 20 percent thereafter for a left knee disability (instability) is remanded. In August 2020, the Court found that the Board erred in not remanding the issues for additional development as August 2016 examination was not adequate for rating purposes as did not test passive motion, and pain with weight-bearing and without weight-bearing. The Court also directed the Board to consider whether higher ratings for the Veteran’s knee instability are warranted. As an additional examination is to be provided for the Veteran’s knee, further evidence will be provided that addresses his current severity for his knee instability. In accordance with the August 2020 JMR determination that the 2016 examination was inadequate for rating purposes, the Board finds that a retrospective opinion would be beneficial to assess the severity of the Veteran’s service-connected left knee condition throughout the period on appeal. Allday v. Brown, 7 Vet. App. 517, 527 (1995); Jones v. Shinseki, 23 Vet. App. 382, 392-94 (2010). These matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. Request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing #1, obtain an opinion for the Veteran’s migraine-headaches using only a records review, if possible, due to the current national public health emergency. If it is not possible to obtain an evidence-supported opinion for the Veteran’s disability without an in-person examination, then schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his migraine-headaches. The claims file is to be made available to the examiner and reviewed in conjunction with the examination.   –Then, address whether: (a.) It is at least as likely as not (50 percent or greater probability) that the Veteran’s current migraine-headaches are related to an in-service injury, event, or disease, to include falling 10 to 15 feet while in service. **The Board finds the Veteran competent to report hitting his head during the fall in service as well as explaining the delay in treatment after exiting service. The Veteran’s competent statements are to be considered in rendering an opinion. Additionally, the examiner may not solely rely on the absence of continuous medical care to provide a negative nexus opinion as the Board has found him to be competent and credible in describing his delay.** See 9/26/2018, Hearing Transcript. 3. After completing #1, schedule an examination to assess the current nature and severity of his service-connected left knee disability. Send the file to an appropriate examiner and ask the clinician to review the claims file. Ensure the examiner has access to the claims file, to include a copy of this Remand. Range of motion (active motion, passive motion, and pain with weight-bearing and without weight-bearing) is to be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected knee disability, and how he characterizes the additional functional loss during a flare-up and with repeated use over time. If the Veteran describes experiencing flare-ups, identify the: (a.) frequency; (b.) duration; (c.) precipitating factors; and (d.) alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up or with repeated use over time, range of motion for flexion is limited to 30 degrees and/or extension is limited to 10 degrees. Please explain why or why not. If it is not possible to provide a specific measurement based on direct observation, the examiner is to provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use 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). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. **Additionally, the examiner is to also provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, for the August 2016 examination and September 2018 disability benefit questionnaires (DBQ). For each examination/DBQ, the examiner is asked to provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and/or after repeated use over time.** If it is not possible to provide a specific measurement based the evidence of record, the examiner is to provide an estimate, if at all possible, of the additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should 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).   Inform EACH examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.