Citation Nr: 21014877 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-43 878 DATE: March 16, 2021 REMANDED Entitlement to service connection for headaches is remanded. Entitlement to an increased rating for a left knee disability is remanded. Entitlement to increased ratings for a right knee disability is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1990 to August 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In January 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In April 2019 and April 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. REASONS FOR REMAND 1. Entitlement to service connection for headaches. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection headaches.  The Veteran claims that a currently diagnosed headache disability began during active service and continues to the present. Specifically, the Veteran believes migraines started after a mortar was launched and landed near his position while in Somalia. The Veteran has stated that the migraines started immediately after the mortar attack and have been constant ever since. The Veteran’s service medical records note a singular mention of headaches during a chapter physical in July 1994. That was described as mild recurrent headaches. The service medical records otherwise do not show any documentation of headaches. During an April 1995 Persian Gulf examination, the Veteran was noted as complaining of headaches all the time for two years. However, the Veteran had no head, eye, ear, nose, throat, or neuropsychiatric complaints during the examination. The examiner did not diagnose any headache disability. During a January 1995 VA neurological disorders examination, the Veteran denied headaches. During an April 2020 VA examination, the Veteran was noted as first being diagnosed with migraines in 1999. The Veteran reported the onset of headaches as being in 1993. After review of the claims file and in-person examination, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness; that the claimed condition was less likely than not proximately due to or the result of a service-connected disability; and that headaches were not at least as likely as not aggravated beyond the natural progression by a service-connected disability. The examiner explained that there is no evidence to support the Veteran had any migraine headache condition while on active duty from 1990 to 1994. The Veteran was diagnosed with migraines in 1999. When he entered service, he reported he had no history of recurrent headaches. The examiner noted that the Veteran did not receive treatment for headaches until 2010, when VA started treatment with Imitrex. The examiner stated that migraine headaches were initially diagnosed in 1999, approximate five years after separation from active service. The Veteran reported no history of headaches, which would indicate the headache resolved. There was no further documentation of migraines until 2010, approximately four years after separation from a second term of active duty. After review of literature, the etiology of migraine headaches was unknown. Research showed that there were frequent co-occurrence of migraines and posttraumatic stress disorder (PTSD), but there had been no concrete evidence that there was a causative link between PTSD and migraine headaches. The Veteran’s headaches manifested between the terms of active duty and did not reoccur until four years after the second term of service. There was no indication that the headaches were either directly or proximately service-connected. Neither did they appear to have been permanently aggravated by any condition associated with service. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  An opinion that relies only on the absence of symptoms or treatment in service is not adequate.  The examiner provided a negative etiology opinion based on the fact that the Veteran did not complain of and was not diagnosed with migraine headaches during active service, but rather five years after service. As the April 2020 VA examiner relied on the absence of chronic symptoms or treatment during service for the negative opinions concerning the demonstrated disability, the Board finds the April 2020 VA examination to be inadequate. Also, the examiner referenced a period of service apparently ending in 2006 in making the opinion. That period of service has not been verified. If that period of service occurred, then an opinion would be needed regarding aggravation of a pre-existing disability during a period of active service.     Accordingly, the Board finds April 2020 VA examination report to be incomplete for rating purposes.  That is a pre-decisional duty to assist error.  Therefore, the Board finds that remand is necessary for an adequate etiology opinion regarding the claimed headache disability. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. § 3.655. 2. Entitlement to an increased rating for a left knee disability is remanded. 3. Entitlement to increased ratings for a right knee disability is remanded. During the pendency of this claim, on February 24, 2021, the Veteran, again, filed a claim for entitlement to an increased rating for a right knee disability. As a result of the February 2021 claim filing, the agency of original jurisdiction ordered a VA knee examination. Because that new knee examination may significantly impact a decision on the issue of entitlement to increased ratings for a right knee disability, the Board finds that the claims must be remanded pending receipt of any information obtained at the examination. The Board finds that it would be potentially prejudicial to the Veteran for the Board to consider the current increased rating claims prior to the receipt of the new knee examination. Therefore, the adjudication of the increased rating claims must be deferred pending receipt of any information obtained at the newly ordered examination. The matters are REMANDED for the following action: 1. Contact the Veteran and the National Personnel Records Center and attempt to verify any period of active service ending in approximately 2006, as referenced at an April 2020 VA examination. 2. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for any headache disability. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. At a minimum, obtain any outstanding VA treatment records. All attempts to obtain records must be documented in the claims folder. 3. Schedule the Veteran for a VA examination, with a medical doctor examiner who has not previously examined the Veteran, to determine the nature and etiology of a currently diagnosed headache disability. The examiner must review the claims file, including this Remand and the lay evidence of record, and should note that review in the examination report. The Board notes that a current diagnosis of migraine headaches has been conceded by VA. After conducting a review of the claims files, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a headache disability is etiologically related to active service or any event, disease, or injury during service, including whether a headache disability (1) began during active service; (2) was noted during service with continuity of the same symptomatology since service; (3) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include PTSD and/or pain associated with the service-connected disabilities, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include PTSD and/or pain associated with any of the service-connected disabilities. The examiner should discuss the significance, if any, of the Veteran’s July 1994 in-service headache complaints as it pertains to the current headache disability. If a period of active service ending in approximately 2006 is verified, the examiner should opine whether it clear and unmistakable (undebatable) that a headache disability was not aggravated during that period of active service. The examiner is advised that the Veteran is competent to report symptoms and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss those lay statements. A clearly stated rationale for each opinion offered should be provided and must not be based on the lack of an in-service record of the claimed disability. 4. After completion of the VA Knee examination ordered on February 26, 2021, readjudicate the increased rating claim for both knees, with consideration of the all evidence since the October 2020 supplemental statement of the case. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mondesir, Eric 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.