Citation Nr: 21029453 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-16 679 DATE: May 13, 2021 ORDER As the claim is withdrawn, the claim of entitlement to service connection for bilateral hearing loss is dismissed. As the claim is withdrawn, the claim of entitlement to a total disability based on individual unemployability (TDIU) is dismissed. REMANDED Entitlement to a rating in excess of 30 percent for right patella femoral pain syndrome with chondromalacia patella (right knee disability) is remanded. Entitlement to a rating in excess of 20 percent for left patella femoral pain syndrome with chondromalacia patella (left knee disability) is remanded. Entitlement to service connection for gastroesophageal disorder, to include gastroesophageal reflux disease (GERD), is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for back disability is remanded. Entitlement to service connection for neck disability is remanded. Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for bilateral ankle disability is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for residuals of head injury is remanded. FINDINGS OF FACT 1. On November 24, 2020, prior to the promulgation of a decision in the appeal, the Veteran notified the Board at his hearing on appeal that he sought to withdraw his claim for entitlement to service connection for bilateral hearing loss. 2. On November 24, 2020, prior to the promulgation of a decision in the appeal, the Veteran notified the Board at his hearing on appeal that he sought to withdraw his claim for entitlement to TDIU. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim for entitlement to service connection for bilateral hearing loss by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim for entitlement to TDIU by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1993 to October 1996, including service at Fort McClellan, Alabama, from February to May 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the claims file. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to a TDIU. Issues 1 & 2: The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, prior to the promulgation of a decision in the appeal, the Veteran (appellant) notified the undersigned VLJ at the November 24, 2020 hearing on appeal that he sought to withdraw his appeal for the claim for entitlement to service connection for bilateral hearing loss and to entitlement to a TDIU. See Hearing Transcript (November 2020). This request was made with full understanding of the consequences and in consultation with his attorney. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Hence, there remain no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of the matters and they are dismissed. REASONS FOR REMAND As explained below, remand for additional evidentiary development is necessary in these matters. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Initially. the Board finds that a remand is necessary to obtain authorization and request outstanding treatment records as well as outstanding service treatment records (STRs) and service personnel records (SPRs). See 38 C.F.R. § 3.159(c)(2); Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). In this regard, the Board notes that the Veteran stated that his STRs are incomplete, including STRs from West Point and a separation physical missing from the file. See VA 21-4142 Authorization for Release of Information (May 2002). The Board recognizes an August 2012 email correspondence indicating that the Veteran's file was lost and had to be rebuilt. See Email Correspondence (August 2012). A response from the Records Management Center (RMC) shows that the Veteran's folder was not of record at RMC and had to be rebuilt. Id. In September 2012, a request for STRs was submitted to RMC. See Email Correspondence (September 2012). A September 2012 response shows that STRs were not of record at the RMC. Id. The Veteran was notified that his STRs had not been located. See MAP-D Development Letter (September 2012). The Formal Finding of Unavailability, issued in October 2012, noted the September 2012 negative response from RMC. See VA Memo (October 2012). In January 2013, a request "099" was submitted to Personnel Information Exchange System (PIES), with a February 2013 response that all available records have been mailed. See VA 21-3101 Request for Information (February 2013). A May 2014 response from DPRIS indicates that no records were found with the information provided. See DPRIS Response (May 2014). The Veteran's SPRs also appear incomplete. See Military Personnel Record (May 2014). The Board finds that the January 2013 PIES request "099" applies to Coast Guard or Coast Guard Reserve STRs and was thus inadequate, as the Veteran served in the Army. Additionally, no attempt has been made to obtain the records from the National Personnel Records Center (NPRC), directly from the Army or any other potential repository. Therefore, the Board finds that remand is necessary for the RO to attempt to obtain the relevant STRs and SPRs. Second, a review of VA treatment records discloses that there are relevant outstanding treatment records. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c). Specifically, VA treatment records reflect that potentially relevant private medical records, including MRIs and medication and treatment records, had been scanned into the record and note Vista-Imaging-scanned documents. However, the VA treatment records in the claims file do not include those scanned (Vist-A Imaging) documents. Additionally, the Veteran's January 2011 VA examination refers to a 2010 sleep study that diagnosed obstructive sleep apnea. See VA Examination (March 2011). However, no sleep study has been associated with the Veteran's file. Third, while the Veteran reported receiving treatment with private medical providers and provided release forms to enable VA to obtain these records, the private treatment records appear incomplete. For example, the Veteran reported treatment at Huntsville Memorial Hospital on his September 2017 VA 21-4142 Form. However, this records request expired prior to it being submitted. See VA 21-0820 Report of General Information (September 2018). Additionally, the Veteran provided new VA Forms 21-4142, including for Dr. Salina, Walker County Hospital Corporation, Ayer Police Department, Shirley Police Department and Leominster Police Department. At his November 2020 hearing, the Veteran reported treatment for his knees at Great Plains Regional in Elk City, Oklahoma. However, no adequate request for these records has been made, and the Veteran has not been notified of RO's inability to obtain these records. In such situations, where private medical records are missing, the Board through the RO must notify the Veteran that these records were unable to be obtained. 38 C.F.R. § 3.159(e). Given the above, remand is necessary to obtain the relevant outstanding treatment records as well as STRs and SPRs, which should then be associated with the claims file. See 38 C.F.R. § 3.159 (c)(2); Sullivan, supra. The Veteran is reminded that VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Swann v. Brown, 5 Vet. App. 229, 233 (1993). He is expected to fully cooperate in the development of his claims and comply with reasonable requests. With regard to the Veteran's claim that his OSA, headaches, head injury, GERD, back disability, neck disability, right shoulder disability and ankle disability resulted from exposure to various chemicals at Ft. McClellan, Alabama, and Fort Brunswick, from 1993 to 1995, the Board takes judicial notice of VA's public health bulletin on potential exposures at Fort McClellan (see https://www.publichealth.va.gov/exposures/fort-mcclellan/index.asp) which notes that potential exposures could have included, but are not limited to: radioactive compounds (cesium-137 and cobalt-60) used in decontamination training activities in isolated locations on base; chemical warfare agents (mustard gas and nerve agents) used in decontamination testing activities in isolated locations on base; and/or airborne polychlorinated biphenyls (PCBs) from the Monsanto plant in the neighboring town. Monzingo v. Shinseki, 26 Vet. App. 97, 103-04 (2012); Brannon v. Derwinski, 1 Vet. App. 314, 316 (1991); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991); see, e.g., Crain v. Principi, 17 Vet. App. 182, 189 (2003). The report indicates that, though exposures to high levels of these compounds have been shown to cause a variety of adverse health effects in humans and laboratory animals, there is no evidence of exposures of this magnitude having occurred at Fort McClellan. In this case, the Veteran does not contend that he had herbicide exposure in the Republic of Vietnam, Korea, or Thailand. His exposure to herbicides may not be presumed under any applicable law. However, that does not obviate VA's duty to assist in establishing the claimed exposure to chemical agents at Fort McClellan. Here, the record does not reflect that VA has attempted to verify or otherwise conceded the Veteran's exposure to chemical agents at Fort McClellan and/or Fort Brunswick. As such, remand is required to verify exposure unless the Veteran's exposure is otherwise conceded by VA. 1. Entitlement to a rating in excess of 30 percent for right knee disability. 2. Entitlement to a rating in excess of 20 percent for left knee disability. Remanded Issues 1 & 2: The Veteran contends that his right and left knee disabilities warrant a higher rating. Specifically, he testified that he uses cane and a hinge brace; that some days he can barely walk or even get out of bed; that he fell during his examination just walking to the door; that his bilateral knee disability is severely limiting his mobility; and that his bilateral knee disability caused him to fall off his porch even with a brace and in the bathtub in the shower. See Hearing Transcript (November 2020). A careful review of the claims files discloses that the VA examinations obtained during the appeal period, which commenced in January 2009, do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) as they pertain to estimating additional functional loss suffered during flare-ups. The October 2019 VA examination also does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016), because it does not provide the range of motion measurements for passive motion and non-weight bearing. In Correia, the Court noted the final sentence of 38 C.F.R. § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The case of Mitchell v. Shinseki held that pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but it may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In this case, the Veteran underwent VA examinations in September 2010, June 2013 and October 2019. The examiners did not attempt to elicit relevant information necessary for the Board to evaluate the Veteran's bilateral knee disability. A contract VA examination conducted in September 2010 and June 2013 did not provide range of motion findings in passive motion, weightbearing or non-weightbearing, and did not indicate at what degree the Veteran's pain began as required by Mitchell. See VA Examination (September 2010); C&P Exam (June 2013). An October 2019 VA examination report shows that the Veteran reported that he has daily knee pain and that his condition is progressively getting worse. See C&P Exam (October 2019). The examiner noted that the Veteran described flare-ups as "walking aggravates the pain and rest relieves it," but the examiner concluded that pain, weakness, fatigability or incoordination do not significantly limit functional ability during flare-ups. Although the examiner found that flare-ups did not significantly limit functional ability, the Board finds that the Veteran's report at this examination of periods of worsening pain and resulting symptoms essentially indicate functional loss during flare-ups, albeit not specifically termed as flare-ups. Additionally, the examiner did not provide range of motion for passive range of motion and non-weightbearing. The Board must rely on independent medical evidence, and not its own judgment, when the rating criteria involve a medical assessment. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (concluding Board may consider only independent medical evidence to support findings and may not rely on its own medical judgment). Accordingly, remand is required to obtain a new VA examination to provide the Board with the necessary medical findings, because the three available VA examination do not provide complete medical findings. Moreover, retrospective supplemental findings should be requested from the examiner on remand. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). 3. Entitlement to service connection for OSA. The Veteran contends that he went to sick call several time for sleep problems, but could not know whether he snored or not, because he had no roommate. See Hearing Transcript (November 2020). He stated that he sought treatment in service, but was told to go to bed earlier, and that sleep study was contemplated but never conducted in service. Id. He also reported that his wives witnessed him snore. Id. Alternatively, the Veteran believes that his OSA resulted from his exposure to chemicals at Fort McClellan and Fort Brunswick. See Form (April 2016). As an initial matter, the record reflects that the Veteran was diagnosed with OSA. To ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 C.F.R. § 3.159(c). By way of background, the Veteran's STRs show normal clinical evaluation of all systems at the pre-enlistment physical in December 1992 and noted scars on arm and forearm as well as chondromalacia of the knees. See STR-Medical (April 2013). An undated Report of Medical History shows frequent trouble sleeping. Id. A January 1995 STR shows complaints of difficulty waking up in the morning and periodic episodes of weakness and dizziness for about two months. Id. He complained of sleeping through alarm and denied snoring. Id. No separation physical is presently of record. Post-service, the Veteran's private treatment records dated October 2000, show that the Veteran was seen for follow-up complaining of insomnia and inability to sleep for more than 3 to 4 hours; Benadryl was recommended to also help with nasal congestion; and the Veteran was assessed with insomnia. Medical Treatment Record - Non-Government Facility (July 2002). Treatment records dated August 2006 show that the Veteran's wife noticed the Veteran wheezing while sleeping since moving to Texas in June. See Medical Treatment Record Non-Government Facility (November 2010). A January 2011 VA examination obtained after a 2010 sleep study diagnosed obstructive sleep apnea. See VA Examination (March 2011). The Board finds that the medical evidence of record is inadequate to fully address the Veteran's contention as to whether his disability is etiologically related to service, to include exposure to chemicals at Ft. McClellan. The Veteran underwent a VA examination in January 2012, where the examiner noted that the Veteran did not have a spouse to witness snoring in 1994 and 1995, when the Veteran described having disrupted sleep and daytime sleepiness, but that since being married for the preceding five years, his wife noted loud snoring ad apneic episodes. See VA Examination (January 2012). Thereafter, the Veteran underwent a VA examination in May 2013 with an opinion that the Veteran's OSA was likely than not incurred in or caused by the claimed in-service injury, event, or illness. See C&P Exam (June 2013). The opinion provided that OSA is not normally associated with sleep disturbance, but is usually associated with snoring and apneic episodes, and the January 1995 in-service sleep disturbance did not cause his OSA. Id. Another VA medical opinion was obtained in September 2018, showing that the Veteran's sleep disturbances during service were not the result of OSA based on the Veteran's STRs showing that he denied snoring. See C&P Exam (September 2018). The opinions noted above are bereft of any meaningful discussion of the Veteran's medical history or medical principles to support the conclusion reached. The January 2012 VA examination does not provide an opinion as to the etiology of the Veteran's OSA. The May 2013 VA examination as well as the September 2018 VA medical opinion provide no analysis and simply conclusions, which are not supported by the evidence of record. A medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination opinion must contain clear conclusions with supporting data, and a reasoned medical explanation connecting the two). Here, both examiners, while noting sleep disturbance in service, premised their conclusions on the absence of snoring and the Veteran denying snoring in service. It is not clear why the examiners found that reports of snoring were required, especially considering that the Veteran would be unable to observe himself snoring during sleep. Also, notably, recently VA received from the Veteran a buddy statement indicating that he had been awakened by the Veteran's snoring in April 1995. See Correspondence (February 2021). Lastly, should the originating agency verify or concede that the Veteran had exposure to chemicals as alleged at Fort McClellan and/or Fort Brunswick, VA's duty to assist requires that VA obtain a medical opinion addressing whether his OSA resulted from exposure such chemical exposure. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. See McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). 4. Entitlement to service connection for GERD. The Veteran contends that his GERD had its onset in service with continuity of symptoms since service. See Hearing Transcript (November 2020). He stated that he was treated in service with TUMS for a burning sensation and burping acid at night. Id. He stated that it felt like his stomach and up was on fire, which he thought was due to overproduction of acid. Id. He reported being on stomach medication for 23 years since service. Id. Alternatively, the Veteran believes that his GERD resulted from his exposure to chemicals at Fort McClellan and Fort Brunswick. See Form 9 (April 2016). As an initial matter, the available STRs reflect no complaints, treatment, or findings for GERD. Post-service, VA treatment records show a diagnosis of GERD in November 2002. See Medical Treatment Record - Government Facility (November 2010). An October 2019 VA medical opinion was obtained to answer whether the Veteran's GERD was at least as likely as not incurred in or caused by exposure to the chemicals, PCBs, radiation, and chemical warfare agents in Fort McClellan. See C&P Exam (October 2019). The Bord finds that it inadequate because it did not explain how the general medical research applied to the Veteran's particular circumstances. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (in cases involving herbicide exposure and cancer, examiner's rationale may not be based solely on general medical articles); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). Specifically, the October 2019 VA examiner referenced Up-to-date medical literature that "GERD may not result from environment exposures" as well as the "current medical literature indicates that GERD is caused by frequent acid reflux," and listed risk factors for developing GERD. The opinion, however, did not explain how the statistical information applied to the Veteran's case, resulting in an inadequate medical opinion. A February 2021 medical opinion from the Veteran's VA family nurse practitioner concludes that it is at least as likely as not that the Veteran's GERD is a result of his frequent use of NSAIDS between 1992 and 1996. See Medical Treatment Record - Government Facility (February 2021). However, the opinion provides little to no rationale for the conclusions as it reflects consideration of various pieces of medical evidence without detailing, for example, which NSAIDS the Veteran used between 1992 and 1996, which includes periods outside of his service, but does not include a reasoned medical explanation connecting the two. See Nieves-Rodriguez, supra. Lastly, should the originating agency verify or concede that the Veteran had exposure to chemicals as alleged at Fort McClellan and/or Fort Brunswick, VA's duty to assist requires that VA obtain a medical opinion addressing whether his GERD resulted from exposure to such chemical exposure. Thus, to ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). 5. Entitlement to service connection for back disability. 6. Entitlement to service connection for cervical spine disability. 7. Entitlement to service connection for right shoulder disability. 8. Entitlement to service connection for bilateral ankle disability. Issues 5 8: The Veteran asserts that he first injured his back in a training accident during basic training, when after a smoke grenade was thrown in the path, he with an 80-pound backpack went over the embankment injuring his back. See Hearing Transcript (November 2020). He reported that carrying a large amount of weight on a small frame, especially jumping over walls took a toll on his lower back. Id. He reported going to sick call in 1993 and getting a profile. Id. He also stated that he got MRIs in-service, "which mysteriously disappeared." After service, he reported going to VA Amarillo in late 1990s to early 2000s. Id. The Veteran asserts that he injured his neck, right shoulder and ankles at the same time as he fell with the backpack and hurt his back. Id. With regard to his neck, he reported experiencing numbness and tingling in his neck since service and receiving treatment since the early 2000s. Id. With regard to his right shoulder, he stated that as a military police officer he ended up in a drunken bar brawl and popped his right shoulder out of place once or twice in the service, after which he went to sick call and got Motrin. Id. He reported receiving treatment since 1997. Id. With regard to his ankles, he also reported that he rolled it over a couple times when running and went to sick call about every six months. Id. The Veteran has also asserted that his back disability and ankle disability are secondary to his service-connected bilateral knee disability. Alternatively, the Veteran believes that his back, neck, right shoulder and ankle disabilities resulted from his exposure to chemicals at Fort McClellan and Fort Brunswick. See Form (April 2016). STRs reflect ankle pain lasting for two weeks and low back pain in April 1993. See STR Medical (April 2013). An undated Report of Medical History shows reports of swollen or painful joints, broken bones and arthritis/bursitis. Id. A November 1994 STR shows that the Veteran twisted his ankle while dancing and was to treat it with ice. Id. As previously noted, no separation physical appears of record. Treatment records following separation show the Veteran's reports of pain in joints in June 2002. See Medical Treatment Record - Government Facility (November 2010). In February 2012, the Veteran was treated for neck pain after a motor vehicle accident, where a history of neck problems was noted. See Medical Treatment Record - Non-Government Facility (December 2018). Neck pain was reported in May 2013. See CAPRI (June 2013). Private treatment records from October 2017 show neck pain and radiculopathy in the cervical region as well as prior medical history of unspecified type arthritis. Id. A November 2018 private treatment note shows limitation of use of joint, muscle pain, back pain, neck pain, joint pain, stiffness in joints and swelling in joints. Id. The Board finds that a remand is necessary to obtain adequate VA examinations to provide a clear etiology for the claimed disabilities. An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl, 21 Vet. App. at 124; see Nieves-Rodriguez, 22 Vet. App. at 304 ("most of the probative value of a medical opinion comes from its reasoning"). An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo, 26 Vet. App. at 106. In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. Multiple medical opinions have been obtained, but none provides adequate medical findings. In January 2012, a VA examination was conducted, which included x-rays of the cervical spine and right shoulder. See VA Examination (January 2012). The Veteran was reported to have chronic posterior neck pain and radicular symptoms as well as right shoulder pain and new developing weakness. Id. X-rays showed disc protrusion at C4-5 level. Id. A December 2012 VA examination noted the Veterans' reports of low back pain aggravated by lifting anything heavy, and ankle pain. See VA Examination (December 2012). The examination showed normal pathology of the back and ankles. Id. X-rays showed "no significant degenerative changes" of the ankles. Id. An October 2019 VA medical opinion found that the Veteran's back disability is less likely than not incurred in or caused by the claimed in-service injury, event or illness, noting one in-service report of low back pain in April 1993 and basing the conclusion on absence of further documentation of in-service back pain and for five years after separation. See C&P Exam (October 2019). With regard to whether the Veteran's back disability is secondary to his service-connected knee disability, the examiner found that, "is no evidence available in the current medical literature to indicate that patellofemoral syndrome of right or the left knee may travel in an anti-gravity fashion in an upward direction to cause back pathology." Id. The opinion also provided that, "this is a soft tissue/musculoskeletal issue, and current medical literature is clear that Lumbago is not related to or caused by chemical exposures/ warfare or PCBs exposures in any way." Regarding the Veteran's bilateral ankle disability, diagnosed at the examination as diagnosed with lateral collateral ligament sprain, the examiner opined that it is less likely than not that it is proximately due to or the result of his service-connected bilateral knee disability, because "There is no evidence available in up to date medical literature to indicate that patellofemoral no syndrome of the knee may travel along gravity in a downward direction to cause any ankle pathology." See C&P Exam (October 2019). Regarding the Veteran's neck disability, diagnosed as degenerative disc disease, the examiner opined that "it is less likely than not that degenerative disc disease, cervical spine, claimed as neck pain and herniated disc incurred in or caused by exposure to the chemicals, PCBs, radiation, and chemical warfare agents in Fort McClellan." See C&P Exam (October 2019). The opinion reasoned that "Review of current medical literature indicates that that Primary osteoarthritis is mostly related to aging." Id. Regarding the Veteran right shoulder, the opinion concluded that it is less likely than not that right shoulder condition is incurred in or caused by (the) exposure to the chemicals, PCBs, radiation, and chemical warfare agents in Fort McClellan based on the "medical literature" being clear that shoulder strain is a local shoulder joint pathology not lined to chemical exposure. See C&P Exam (October 2019). The October 2019 VA medical opinion regarding whether the Veteran's back disability and ankle disability are secondary to his service-connected knee disability also relied on general medical studies without any application to the Veteran's disability picture. Specifically, the October 2019 VA examiner referenced Up-to-date medical literature or to medical literature, generally. The opinions, however, did not explain how the statistical information applied to the Veteran's case, nor did it provide which "medical literature" the opinion was based on, resulting in an inadequate medical opinion. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (in cases involving herbicide exposure and cancer, examiner's rationale may not be based solely on general medical articles); Polovick v. Shinseki, 23 Vet. App. 48, 54 (2009) (although general medical research may be considered, it cannot be the sole basis for examiner's conclusion). Moreover, the October 2019 VA medical examinations did not provide whether the Veteran's bilateral ankle disability neck disability and right shoulder disability are at least as likely as not related to the Veteran's service, including the available STRs annotating ankle pain and joint pain generally, as well as the Veteran's reports of multiple injuries in service. While the opinion addressed whether the Veteran's back disability was incurred in service, it is inadequate, because it does not reflect a meaningful discussion of the Veteran's lay statements. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate"). In this instance, the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology such back pain. If there is a medical basis to support or doubt the history provided by the Veteran, the clinician should provide a fully reasoned explanation. Here, the examiner did not note the Veteran's reports of ongoing back pain since service instead relying on the absence of annotated treatment other than in April 1993 during service and for five years after. Given that the VA medical opinion is absent of any meaningful discussion of evidence, including the Veteran's reports, the Board finds that it may not rely upon it in its present form and, therefore, concludes that the VA medical opinion is inadequate for adjudicative purposes. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). 9. Entitlement to service connection for migraine headaches 10. Entitlement to service connection for residuals of head injury. Issues 9 & 10: The Veteran contends that he has experienced headaches and migraines since the first bar fight during service when he had to arrest people and got hit with a beer bottle. See Hearing Transcript (November 2020). He stated that he initially thought he was experiencing sinus headaches and reported that during service, but his migraine symptoms have persisted since then and have now been diagnosed as migraine headaches. Id. Regarding his residuals of a head injury, the Veteran contends that, being a military police officer, he was treated several times for a concussion, including after being hit upside the head with a beer bottle and with a pool cue just in the typical line of duty. Id. He reported an incident in 1994, after which he was treated at VA Medical Center in Fort Devens and Nashoba, for which he stated he signed release forms. Id. He also stated that he had a vehicle accident in the winter of 1995, during which he flipped his vehicle coming back to post during a winter storm and hit his head on the driver's side window when the car flipped. Id. He stated that he then went to the Nashoba Hospital and was treated under concussion protocol. Id. Presently, he reported that he experiences head pain, memory issues, left arm tingling and stutter. Id. To ensure that VA has met its duty to assist, the Board concludes that a remand is necessary to obtain VA medical examinations in these matters. 38 C.F.R. § 3.159(c). The Veteran's pre-enlistment Report of Medical History shows reports of falling off a car resulting in head injury. See STR - Medical (April 2013). His enlistment physical shows normal findings other than bilateral knee chondromalacia. Id. An undated periodic Report of Medical History shows reports of head injury. Id. In May 1994, the Veteran complained of headache, vomiting and nausea and stomach flu. Id. In January 1995, the Veteran complained of periods of weakness and dizziness. Id. A November 1995 STR shows that the Veteran fell off a back of a car. Id. Post-service, the Veteran was diagnosed with tension headaches in November 2002. See Medical Treatment Record - Government Facility (November 2010). A March 2003 consult concerned headaches lasting for over a year and the Veteran's sensitivity to noise and light, which resulted in nausea and necessitated him to go to bed. Id. Seven-year history of headaches was noted and assessed as vertebro-basilar migraine. Id. In June 2003, the Veteran was diagnosed with migraines. Id. A February 2021 letter from a VA Family Nurse Practitioner includes a diagnosis of a botched concussion. See Medical Treatment Record - Government Facility (February 2021). The Board finds that VA's duty to obtain a VA examination and opinion are triggered in this case. He testified to in service symptoms and he is competent to report such symptoms; also, there is competent evidence of current migraine headache and residuals of head injury symptoms. Given the above evidence, as well as the potential absence of STR, SPRs and post-service treatment records, and the Veteran's contentions of continued migraine headaches as well as head pain, memory issues and stutter, the Board finds that a VA examination is necessary to address the nature and etiology of migraine headaches and any residuals of head injury, to include head pain, memory issues, left arm tingling and stutter. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.). Additionally, as stated above, the Board takes judicial notice of VA's public health bulletin on potential exposures at Fort McClellan. Given this, coupled with the activities described by the Veteran while at Fort McClellan and the presence of a current diagnosis of migraine headaches and residuals of head injury, including memory issues, the Board finds that, ONLY IF EXPOSURE IS VERIFIED, VA's duty to obtain a VA medical opinion regarding whether either or both were caused by exposure to chemicals at Fort McClellan is also triggered. See McLendon, supra. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's asserted in-service exposure to chemical agents at Fort McClellan and Fort Brunswick from February to May 1993, to include exposure to other toxins including PCBs, chemical warfare agents, and whether chemical agents or other toxic substances were stored at that site as alleged by the Veteran. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify exposure to chemical agents, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA's inability to verify the in-service herbicide agent exposure along with the steps taken to attempt to verify his exposure. 2. Obtain complete STRs and SPRs through official sources and potential repositories of such records to include, but not limited to, NPRC, the Department of the Army and the RMC. All attempts to obtain such records should be clearly documented in the claim file. If it is determined that such records do not exist or are otherwise unavailable, then a formal finding of unavailability should be made and associated with the claim file. 3. If any records cannot be obtained, provide the appellant with a proper notice that meets the requirements under 38 U.S.C. § 5103 (A)(b)(2) and 38 C.F.R. § 3.159(e), and includes (a) the identity of specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claim, and (d) that the appellant is ultimately responsible for providing the evidence. Such notice should also inform the appellant of alternative sources of evidence that may be submitted in place of his missing service records. 4. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms of bilateral knees, OSA, to include the 2010 sleep study, GERD, back disability, neck disability, right shoulder disability, bilateral ankle disability, migraine headaches and residuals of head injury. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 5. Obtain the Veteran's VA treatment records for the period from January 2016 to the Present; and associate with the claims file copies of all scanned non-VA medical treatment records into the VA medical records system using VISTA Imaging. 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right and left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. As to the below requested measurements, if it is not possible to provide a specific measurement without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Current Findings (a.) Test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b.) Indicate whether and at what point during the range of motion (ROM) testing the Veteran experiences any limitation of motion that is specifically attributable to pain. (c.) Attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and ESTIMATE the degree of functional loss during flare-ups and with repeated use. Retrospective Findings (d.) Provide an addendum retrospective opinion for the Veteran's service-connected bilateral knee disability to supplement the September 2010 VA Examination Report that: i. Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. ii. Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. (e.) Provide an addendum retrospective opinion for the Veteran's service-connected bilateral knee disability to supplement the June 2013 VA Examination Report that: i. Estimates the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements. ii. Estimates the amount in degrees of ROM due to flare-ups experienced by the Veteran based on the evidence of record and the Veteran's statements. 7. Obtain an opinion from an appropriate physician as to the nature and etiology of the Veteran's diagnosed OSA and GERD. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any OSA and GERD. Obtain a complete medical history as to his use of non-steroidal anti-inflammatory drugs (NSAIDs) to include when dosage and frequency during active service. The opinion should address the following: OSA (a.) Whether OSA, at least as likely as not, was first manifested during the Veteran's active service. Explain. Consider his reports of sleep disturbance, and notations of difficulty waking up in the morning with periodic episodes of weakness and dizziness as well as reports of sleeping through alarm and frequent trouble sleeping in his STRs. Indicate whether such symptoms may be due other causes. Explain. (b.) ONLY IF EXPOSURE TO CHEMICALS in service is verified or conceded, then address whether the Veteran's OSA, at least as likely as not, is proximately due to or the result of his exposure to chemicals in service. GERD (c.) Whether GERD, at least as likely as not, was first manifested during the Veteran's active service. considering his competent reports of symptoms since service. Explain. (d.) Whether GERD is at least as likely as not proximately due to or aggravated beyond its natural progression by NSAIDs taken during service. Separate rationales addressing causation and aggravation is necessary as these are independent concepts. Consider the February 2021 medical opinion from the Veteran's VA family nurse practitioner indicating that the Veteran's GERD is a result of his frequent use of NSAIDS between 1992 and 1996. See Medical Treatment Record Government Facility (February 2021). (e.) ONLY IF EXPOSURE TO TOXIC CHEMICALS in service is verified or conceded, then address whether the Veteran's GERD, at least as likely as not, is proximately due to or the result of his exposure to chemicals in service. NOTE: A negative medical opinion may not be predicated solely on the absence of medical literature and/or research/studies supporting causation or aggravation. The OSA and GERD opinions should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 8. Obtain an addendum opinion from an appropriate clinician regarding the Veteran's back, neck, right shoulder and bilateral ankle disabilities. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. As to each condition, detail the Veteran's reported symptoms (as well as any injuries) in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. The report of examination should, among other things, address all of the Veteran's back disability, neck disability, right shoulder disability and bilateral ankle disability diagnoses during the appeal period and include a discussion of the Veteran's documented history and assertions. (a.) For each back, neck, right shoulder and ankle disability shown, opine on whether it at least as likely as not related to an in-service injury, event, or disease. Explain. Consider (1) the Veteran's reported history and symptoms since service; and (2) the significance, if any, of STRs showing ankle pain for two weeks, low back pain, painful joints, broken bones, arthritis/bursitis and twisted ankle. (b.) To the extent that there is arthritis of the back, neck, right shoulder, or either ankle, indicate whether it at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) For back disability and bilateral ankle disability only, is it at least as likely as not (a) proximately due to or (b) aggravated beyond its natural progression by service-connected bilateral knee disability. Separate rationales addressing causation and aggravation is necessary as these are independent concepts. (d.) ONLY IF EXPOSURE TO TOXIC CHEMICALS in service is verified or conceded, then address whether the Veteran has a back, neck, right shoulder, or ankle disability that is at least as likely as not, is proximately due to or the result of his exposure to toxic chemicals in service. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings for the claimed condition. If another etiology is the more likely cause, the clinician must provide a complete explanation of his or her reasoning. NOTE (2): An adequate medical opinion will fully address the Veteran's theory of causation and must provide a complete explanation for any history rejected. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). 9. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of migraine headaches and residuals of head injury, to include head pain, memory issues and stutter The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. As to each condition, detail the Veteran's reported symptoms (as well as any injuries) in service and thereafter, including the nature, onset, progression and severity of his reported symptoms. The examiner must opine on the following: (a.) Whether it is at least as likely as not had its onset during active service or is otherwise related to an in-service injury, event, or disease. Explain. If another etiology is more likely the cause, then this should be identified and fully explained. Consider the following: (1) STRs showing reports of headache, and periods of weakness and dizziness;(3) STRs showing a November 1995 incident of the Veteran falling off his car; (4)the Veteran's history of migraine headaches and reports numerous head injuries during service (e.g. history of several concussions, a hit to his head with a beer bottle and pool cue, 1995 motor vehicle accident where he struck his head); and (4) the Veteran's reports of ongoing symptoms of head pain, dizziness, left arm tingling and memory issues. (b.) ONLY IF EXPOSURE TO TOXIC CHEMICALS in service is verified or conceded, then address whether symptoms of migraine are at least as likely as not, is proximately due to or the result of his exposure to toxic chemicals in service The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s) to include whether the Veteran's reports about the onset and/or development of his symptoms align with how the currently diagnosed disability is known to develop (or is his report generally inconsistent with medical knowledge or implausible). NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. NOTE (2): A negative medical opinion may not be predicated solely on the absence of medical literature and/or research/studies supporting causation or aggravation. 10. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. (Continued on next page) 11. Conduct any other development deemed necessary in these matters and then readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.