Citation Nr: 21027122 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-58 845A DATE: May 4, 2021 REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a cervical spine disorder is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1990 to April 1991, and from December 2005 to March 2006. These matters come before the Board of Veterans' Appeals (Board) from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing is of record. Upon review of the record, the Board finds that a remand is required in order to ensure that VA has met its duty to assist. 38 C.F.R. § 3.159(c). The Veteran maintains that all of his claimed disabilities stem from an injury sustained during his first period of active duty service. Specifically, while stationed at Fort Irwin, the Veteran indicated that he was lowered into a tank (head-first) in order to perform repairs. The tank was subsequently struck by another tank, which resulted in the unbuckling of the Veteran's harness. He indicated that he fell head-first into the tank, lost consciousness, and was transported to a medical facility and was treated for approximately 6 days. The Veteran was unable to recall the exact location of his treatment. VA treatment records following service separation show that the Veteran has consistently reported sustaining a head injury as a result of the tank accident in service. A statement dated in July 2017 from a fellow servicemember also similarly documents the injury at Fort Irwin. Unfortunately, the Veteran's service treatment records are unavailable, despite several unsuccessful attempts by the RO. See October 2012 Formal Finding of Unavailability of Service Treatment Records. When service treatment records are unavailable, VA has a heightened duty to assist the Veteran in the development of his claim and to carefully consider the so-called "benefit of the doubt" rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). On remand, the RO should undertake all necessary efforts to obtain any outstanding medical records, to include records between 1990 and 1991 from the Weed Army Community Hospital, located at Fort Irwin. In light of the Veteran's contention that his injuries occurred at Fort Irwin, it is reasonable to assume that he may have received treatment at the medical facility on base, i. e., the Weed Army Community Hospital. Next, the Veteran has indicated that he is in receipt of Social Security Administration (SSA) disability benefits since approximately 2019. See January 2021 Board Hearing transcript at pg. 13. As the Veteran's SSA records may reasonably contain information relating to the Veteran's claims on appeal, remand is required to obtain these records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Moreover, following the most recent December 2016 Statement of the Case (SOC), newly obtained VA treatment records have been associated with the claims file pertaining to the Veteran's claims on appeal. The Veteran also underwent a VA headaches examination in May 2017. These VA treatment records, and the 2017 VA examination report were associated with the record following the most recent SOC (without waiver of AOJ consideration). The Board finds that a remand is warranted. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. Finally, and in light of VA's heightened duty to assist the Veteran in the development of his claims, the Board finds that a remand is warranted in order to afford the Veteran VA examinations and medical opinions regarding the nature and etiology of his claimed disorders. Although the Veteran was afforded a VA headaches examination, no opinion as to the etiology of his disorder was provided. The matters are REMANDED for the following actions: 1. Undertake the necessary efforts to obtain any outstanding medical records dated from 1990 to 1991 from the Weed Army Community Hospital at Fort Irwin. Efforts to obtain these records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. All efforts to obtain outstanding medical records should be documented in the claims folder. 2. Request and obtain from the SSA all records pertaining to the Veteran's disability benefits. All efforts to obtain these records should be documented in the claims folder. 3. Then, schedule the Veteran for a VA examination to assist in determining the nature and etiology of his claimed headache disorder. The claims file must be available to the examiner. A complete history should be elicited from the Veteran. The examiner is asked to address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's migraine headache disorder was incurred in service or is otherwise related to it. *Address and reconcile May 2017 VA Headaches and TBI DBQs showing diagnose of migraine headache with onset in 1996 and TBI with onset of 2016. ** For the purpose of this opinion, the clinician should assume an in-service injury occurred as described by the Veteran and his fellow service member (i. e., Veteran falling head-first into a tank while stationed at Fort Irwin). See January 2021 Board Hearing Transcript and July 2017 statement from a fellow servicemember. (c.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 4. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of his claimed cervical spine disorder. The claims file must be available to the examiner. A complete history should be elicited from the Veteran. The examiner is asked to address the following: (a.) List all current diagnoses pertaining to the Veteran's cervical spine. (b.) For each diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disorder was incurred in service or is otherwise related to it. ** For the purpose of this opinion, the clinician should assume an in-service injury occurred as described by the Veteran and his fellow service member (i. e., Veteran falling head-first into a tank while stationed at Fort Irwin). See January 2021 Board Hearing Transcript and July 2017 statement from a fellow servicemember. (c.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 5. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of his claimed lumbar spine disorder. The claims file must be available to the examiner. A complete history should be elicited from the Veteran. The examiner is asked to address the following: (a.) List all current diagnoses pertaining to the Veteran's lumbar spine. (b.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lumbar spine disorder was incurred in service or is otherwise related to it. ** For the purpose of this opinion, the clinician should assume an in-service injury occurred as described by the Veteran and his fellow service member (i. e., Veteran falling head-first into a tank while stationed at Fort Irwin). See January 2021 Board Hearing Transcript and July 2017 statement from a fellow servicemember. (c.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 6. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of his claimed right and left knee disorders. The claims file, and a copy of this remand, must be available to the examiner. A complete history should be elicited from the Veteran. The examiner is asked to address the following: (a.) List all current diagnoses pertaining to the Veteran's right and/or left knee disorders. (b.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right and/or left knee disorder was incurred in service or is otherwise related to it. ** For the purpose of this opinion, the clinician should assume an in-service injury occurred as described by the Veteran and his fellow service member (i. e., Veteran falling head-first into a tank while stationed at Fort Irwin). See January 2021 Board Hearing Transcript and July 2017 statement from a fellow servicemember. ** Address July 2002 physical therapy notes from St. Joseph's reflecting treatment for MCL sprain of left knee following a work injury. (c.) All opinions are to be accompanied by a rationale consistent with the evidence of record. (Continued on the next page) 7. Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.