Citation Nr: 21031918 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 10-19 260 DATE: May 25, 2021 REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1993 to June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in December 2013. This case was before the Board most recently in April 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. A January 2021 rating decision granted entitlement to service connection for bilateral hip, ankle, and foot disabilities. This action represents a total grant of the benefit sought on appeal with respect to these issues, and they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). 1. Entitlement to service connection for headaches is remanded. The Board has previously found all the relevant medical opinions of record to be inadequate for failing to address the Veteran's contentions regarding in-service injuries and the onset of headaches. In October 2020, the RO obtained a new opinion regarding the Veteran's headaches. The examiner opined the headaches were less likely than not incurred in or caused by service because, after review of the records, there is no documentation of complaints or treatment for headaches. The examiner also noted in the examination report that the Veteran's current symptoms were more consistent with tension headaches than with post-concussive headaches, but did not provide any further explanation. This opinion is inadequate, as it does not address the Veteran's reports that his headaches began shortly after an injury in jump school where he hit his head. The Veteran, as a lay person, is competent to report symptoms such as headaches, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), and the examiner impermissibly dismissed his reports solely because they were not documented in contemporaneous medical records, see Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, the Board notes the Veteran has reported that his neck pain and headaches began simultaneously, and that the Veteran is currently service-connected for a cervical strain. There is currently no opinion in the record addressing a possible connection between the service-connected neck strain and the current headaches. Therefore, as there are no adequate medical opinions in the record, a remand is necessary to obtain a new opinion. 2. Entitlement to service connection for a right knee disability is remanded. 3. Entitlement to service connection for a left knee disability is remanded. Similarly, the Board has previously found all the relevant medical opinions of record to be inadequate for failing to address the Veteran's contentions regarding in-service injuries and the onset of knee symptoms. In October 2020, the RO obtained a new VA knee examination, in which the examiner identified no current diagnosis of any right or left knee disability. At this examination, the Veteran reported that he fell off a Humvee during service and landed on his knees, that he also injured both knees during a jump, and that he has had knee pain since service. The Veteran also reported current pain, stiffness, swelling, and popping noises in both knees. An x-ray of the knees completed in conjunction with this examination revealed slight lateral subluxation of both patella. The examiner opined that any bilateral knee condition is less likely than not related to service, stating only that there was no objective findings for a bilateral knee condition. This examination is inadequate. First, the examiner did not address the Veteran's reported symptoms and whether they cause any functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018). Further, the examiner did not address the diagnosis of bilateral knee strain made on the September 2016 VA examination, which would satisfy the current disability element of service connection even if resolved. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Finally, the examiner did not discuss whether the lateral subluxation of the right and left patella constituted a current disability. Therefore, as there are no adequate opinions in the record, a remand is necessary to obtain a new opinion properly addressing current knee pathology and the Veteran's contentions regarding in-service injuries and the onset of symptoms. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician to determine whether the Veteran's current headaches are related to the military service. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the current headaches disability began in or is otherwise related to the Veteran's active service, to include as due to an injury during jump school when he swung out on a rope and landed on the back of his head, which was protected by a helmet. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the headaches disability is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran's service-connected cervical strain. Please note, causation and aggravation are separate concepts and must be addressed independently. The examiner should specifically address the Veteran's lay statements regarding head injuries in service and subsequent onset of neck pain and headaches. The examiner may not dismiss the Veteran's report of symptoms capable of lay observation solely on the basis that they are not documented in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Forward the claims file to an appropriate clinician to determine whether any current right and/or left knee disability is related to the Veteran's military service. Following review of the claims file, the examiner should identify all current knee disabilities found during the pendency of this claim, since approximately February 2008, including but not limited to right and left knee strain and lateral subluxation of the right and left patella. If the examiner determines that these are not current disabilities, the examiner should provide a thorough explanation, such as whether such a diagnosis was made in error or whether the condition does not constitute a disability, etc. If the examiner finds that there are no current disabilities of the right or left knee, the examiner should opine whether the knee symptoms the Veteran has reported in the record cause any functional impairment. If the examiner determines that functional impairment is caused by the Veteran's knee symptoms, the examiner should offer an etiology opinion as follows, regardless of the existence of any underlying pathology in the knee or knees. For EACH disability identified during the appeal, to include knee symptoms that result in functional impairment, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise related to the Veteran's active service. The examiner should specifically address the Veteran's lay statements regarding injuries during service and the onset of knee symptoms. The examiner may not dismiss the Veteran's report of symptoms capable of lay observation solely on the basis that they are not documented in contemporaneous treatment records. (Continued on next page) All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.