Citation Nr: 21023915 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-28 418 DATE: April 21, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a headache disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1981 to November 1983. The Veteran appeals an October 2013 rating decision by the Agency of Original Jurisdiction (AOJ). In November 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. As such, the case has returned to the Board for further appellate proceedings. However, as explained below, the Board finds that another remand is necessary in order to provide the Veteran with an adequate examination and/or opinion. 1. Bilateral Knees Pursuant to the November 2018 Board remand, the Veteran was afforded a January 2020 VA examination to assess the nature and etiology of his claimed bilateral knee condition. The Board finds the examination and opinion inadequate for the reasons listed below and must remand for a new VA examination and/or opinion. First, the January 2020 examiner found the Veteran did not have a current bilateral knee disability. See January 2020 VA examination report. The January 2020 examiner based their negative nexus opinion on what appears to be solely the finding that the Veteran does not currently have a bilateral knee disability. The examiner ultimately concluded that because the Veteran does not have objective evidence of a pathologic knee condition, it is less likely than not related to service. Id. However, the Veteran was diagnosed with bilateral knee sprain at his previous August 2013 VA examination. See August 2013 VA examination report. This prior diagnosis was not addressed by the January 2020 VA examiner; therefore, the opinion is inadequate. Further, the record reflects the Veteran has consistently complained about knee pain, even describing severe flare-ups to the January 2020 VA examiner. Specifically, he described his flare-ups as being severe, constant, and occurring daily. The Veteran stated that his knee pain makes it difficult for him to walk or stand for long periods of time. See January 2020 VA examination report. As pain alone can constitute a disability if it causes functional impairment, a remand is necessary as it was not previously considered by the VA examiner. Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (2018). 2. Headaches Pursuant to the November 2018 Board remand, the Veteran was afforded a January 2020 VA examination to assess the nature and etiology of his claimed headache condition, to include as secondary to his service-connected neck and shoulder disability. The Board finds the examination and opinion inadequate for the reasons listed below and must remand for a new VA examination and/or opinion. First, the January 2020 examiner found that despite the multiple diagnoses of record, the Veteran does not have migraine headaches. See January 2020 VA examination report. The examiner instead concluded that the Veteran described cephalgia type headaches, and thus diagnosed him with cephalgia. Consequently, the examiner concluded that “since there is no documented diagnosis of migraine headaches, migraine headaches cannot be caused by any other in service disease, event or injury.” Id. As to his secondary service connection claim, the January 2020 VA examiner acknowledged that the Veteran is service connected for shoulder and neck conditions, but concluded that there is no evidence in the available medical records that the Veteran has a clear established diagnosis of migraine headaches; therefore, they concluded that the Veteran’s neck and shoulder disabilities cannot have caused or aggravated migraine headaches. See January 2020 VA examination report. The Board finds this opinion and accompanying rationale to be inadequate for adjudication purposes. While the examiner diagnosed the Veteran with a headache disability, namely cephalgia, they did not provide a nexus opinion for same. The examiner simply stated that migraine headaches cannot be related to service, or secondary to any service-connected condition, because the Veteran does not have “a clear and established diagnosis of migraine headaches.” See January 2020 VA examination report. There is no opinion regarding the now diagnosed cephalgia headaches. As such, remand is required. Further, the Board notes that the Veteran has been consistently treated for migraine headaches. The record contains ongoing care and complaints, including prescribed medication to control migraines. See, e.g., June 2012 VA treatment record; July 2013 VA treatment record. The January 2020 VA examiner noted that the Veteran indicated that he has not been treated with any medication typically prescribed for migraine headaches and used that as part of the conclusion he does not have a diagnosis of the same. See January 2020 VA examination report. However, as noted above, the Veteran was prescribed migraine medication, and has consistent reports of migraines throughout his VA treatment records. As such, this inconsistency should be addressed on remand as well. Lastly, the Board notes that the Veteran was treated for tension headaches in July 2006, which were at the time noted to be due to “neck pain.” See July 2006 VA treatment note. However, it is unclear to the Board at this time whether the tension headaches described are the same as the current headaches the Veteran suffers from, and if it is related to the same neck pain that he is now service-connected for. On remand, the reviewing clinician shall address this specific treatment note as well. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his bilateral knee and headache disabilities that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the development in (1) above has been completed, obtain an opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran’s bilateral knee disabilities. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the reviewing clinician. The opinion must include a notation that this record review took place. It is up to the discretion of the reviewing clinician as to whether an examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the reviewing clinician, the reviewing clinician should identify all bilateral knee disabilities present. Then, the reviewing clinician is asked to respond to the following: (a.) Is it at least as likely as not that the Veteran’s bilateral knee disability was incurred in, or is otherwise related, to his time on active service? The reviewing clinician is to carefully consider the Veteran’s statements of knee pain and other symptoms in light of the precedential finding of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone can serve as a functional impairment and therefore qualify as a disability. Additionally, the reviewing clinician should consider the Veteran’s prior diagnosis of bilateral knee sprain from the August 2013 VA examination. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the development in (1) above has been completed, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s headaches. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the reviewing clinician, the reviewing clinician should identify all headache disabilities present, to include migraines and/or cephalgia. Then, the reviewing clinician is asked to respond to the following: (a.) Is it at least as likely as not that the Veteran’s headaches (to include migraines and/or cephalgia) were incurred in, or otherwise related, to his time on active service? The reviewing clinician is directed to address the Veteran’s previous diagnoses of migraines, including medication prescribed for same, as outlined in the instant decision. (b.) Is it at least as likely as not that the Veteran’s headaches (to include migraines and/or cephalgia) were CAUSED by his service-connected neck and shoulder disability? (c.) Is it at least as likely as not that the Veteran’s headaches (to include migraines and/or cephalgia) were AGGRAVATED by his service-connected neck and shoulder disability? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). (Continued on the next page)   4. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.