Citation Nr: 21022334 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-31 586 DATE: April 15, 2021 REMANDED The claim for service connection for headaches is remanded. The claim for service connection for right ear hearing loss is remanded. The claim for service connection for a bilateral knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1974 to February 1978 and from February 1978 to September 1980. The Veteran’s second period of service was found to be dishonorable for VA purposes. This matter is on appeal from a March 2014 rating decision. The Veteran and his wife, J.W. testified before a Veterans Law Judge at an April 2019 Board hearing. A copy of the transcript has been obtained and associated with the claims file. In September 2019, the Board reopened but denied the Veteran’s claims of service connection for headaches and a right ear hearing loss. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veteran Claims (Court). The Court issued an Order in October 2020 which granted a Joint Motion for Remand (JMR) with regard to these issues, which is now again before the Board. The issue of service connection for a bilateral knee disability was remanded by Board in September 2019 for further development. The requested development has been completed. However, as will be discussed in greater detail below, additional development is warranted. 1. Service connection for headaches According to the JMR, the Board failed to address the credibility and probative value of the lay statements provided by the Veteran and his wife regarding the frequency of his headaches. The JMR also requested that the Board ensure that the VA opinions of the record are adequate with regard to the lay statements of the Veteran’s symptomatology of his headaches. According to the March 2016 VA opinion, the VA examiner acknowledged the incidents of head trauma and complaints of the headaches during service but determined that, “[t]he [V]eteran, on all these occasions, was treated conservatively and recovered without residual effects. The episodes were acute and transient without persistent or recurrent sequelae.” Here, the VA examiner did not adequately address the Veteran’s lay statements of continuity of symptomatology since separation from service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant’s lay assertions regarding onset of symptoms or injury during service). Accordingly, the Board finds that the March 2016 VA opinion, with regard to the Veteran’s claim for a bilateral knee disability is inadequate for evaluation purposes. Therefore, the Board finds that a new VA etiological opinion is warranted. 2. Service connection for right ear hearing loss According to the JMR, the Board failed to address the credibility and probative value of the lay statements provided by the Veteran that his hearing gradually diminished over the years since the end of his military service. The JMR also requested that the Board ensure that the VA opinions of the record were adequate with regard to the lay statements of the Veteran’s symptomatology of his right ear hearing loss. According to the February 2016 VA opinion, the VA examiner determined that the Veteran’s right ear hearing loss was not at least as likely as not incurred in or caused by his active duty noise exposure. The VA examiner stated that the audiometric testing within the service treatment records and at separation was within normal limits, bilaterally. There was also “no significant worsening of hearing acuity in the right ear when compared to the hearing test [at entrance into service].” Therefore, the VA examiner explained that because “hearing loss due to noise occurs at the time of exposure and not subsequently” the Veteran’s right ear hearing loss was not caused or a result of noise exposure during his military service. If hearing loss as defined by 38 C.F.R. § 3.385 is not shown in service or at separation from service, service connection may still be established if medical evidence shows that it is actually due to incidents during service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). Furthermore, the VA examiner did not adequately address the Veteran’s lay statements of continuity of symptomatology since separation from service. Dalton, 21 Vet. App. at 39-40. As such, a new VA opinion is needed. 3. Service connection for bilateral knee disability As stated above, the Board additional development is warranted for this claim. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). According to the March 2021 Brief submitted by the Veteran’s representative, the Veteran has asserted his bilateral knee disability has been aggravated by the obesity resulting from his service-connected lumbar spine. While the Veteran was afforded a VA opinion in September 2020, this theory of entitlement has not been addressed. Specifically, the September 2020 VA examiner determined it was less likely than not that the Veteran’s bilateral knee osteoarthritis began during or was otherwise caused by his military service, but stated that the Veteran obesity was a factor leading to his bilateral knee disability. It is unclear from the record whether the Veteran’s service-connected lumbar spine disability led to his obesity. Obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan 6, 2017). The VA General Counsel opinion states that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 at 1. Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Id. at 2. Therefore, the Board finds that remand is appropriate to obtain a new VA opinion that addresses all theories of entitlement. The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the etiology of the Veteran’s headache condition. The examiner should opine as to whether it is at least as likely as not (50 percent or better probability) that a headache disability either onset during the Veteran’s military service or is otherwise related to his service. Why or why not? The VA examiner should review the October 21, 2020 Appellate Brief for an explanation as to why the earlier VA examination was felt to be inadequate. In providing the requested opinion, the examiner should specifically address the statements by the Veteran and his spouse to the effect that the Veteran’s headaches began in 1975 after receiving a cut over the eye. 2. Obtain an etiological opinions as to whether it is at least as likely as not (50 percent or better probability) that the Veteran’s the right ear hearing loss onset during, manifested within one year of service discharge, or is otherwise related to his active military service. Why or why not? If a physical examination is necessary to answer the Board’s questions, one should be scheduled. The VA examiner should review the October 21, 2020 Appellate Brief for an explanation as to why the earlier VA examination was felt to be inadequate. The examiner should specifically consider the lay statements regarding continuity of symptomatology since 1981, including the Veteran’s testimony that he had recalled having to ask people to repeat themselves since the end of his military service until the present. 3. Obtain an addendum opinion to determine whether the Veteran’s bilateral knee disabilities are the result of his obesity and if so to address the etiology of the obesity. Specifically, the VA examiner should answer the following questions: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s service-connected disabilities (namely, the service-connected lumbar spine disability), as well as prescribed medication for their treatment, caused him to become obese? Why or why not? b. Is it at least as likely as not (50 percent or greater probability) that obesity was a substantial factor in causing the Veteran’s bilateral knee disability? Why or why not? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral knee disabilities would not have occurred but for obesity caused by the service-connected disabilities? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yoo, 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.