Citation Nr: 21040902 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 15-18 925A DATE: July 7, 2021 REMANDED Service connection for a low back disorder. Service connection for a right knee disorder. Service connection for a right ankle disorder. Service connection for migraine headaches. Service connection for a neurobehavior effects disorder, to include as due to contaminated water exposure at Camp Lejeune. REASONS FOR REMAND The Veteran had active duty service from August 1980 to August 1983. She also had subsequent service in the National Guard. The case is on appeal from a February 2014 rating decision. The Board, in part, previously remanded these issues in December 2019. The Board also remanded claims of service connection for a left knee disorder and pes planus. Upon remand, the RO issued a rating decision in April 2020 granting service connection for these conditions. The April 2020 rating decision represents a complete grant of the benefits sought on appeal, so those issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Service connection for a low back disorder. 2. Service connection for a right knee disorder. 3. Service connection for a right ankle disorder. The Veteran contends that she has low back, right knee, and right ankle disorders related to an injury during service. She wrote in multiple statements that the initial injury occurred in August 1980, during the first morning of basic training. She was assigned to the upper bunk, jumped off, and twisted her knees, ankle, and jolted her back. She did not request medical attention. See 12/4/2012 Veteran statement; 4/22/2019 VA Form 9. She further contends that the conditions of her service, especially the running while carrying heavy objects, such as field packs, gas mask, and body armor, caused her to seek medical attention. See 4/22/2015 VA Form 9. The Veteran's representative also raised a secondary theory of entitled. See 6/2/2021 appellate brief. The Veteran's service treatment records (STRs) show treatment in December 1981 for complaints of right foot pain for two days; physical examination revealed swelling of the right ankle, and the diagnosis was questionable sprain. In June 1983, she sought treatment for low back pain for "weeks" related to a basketball game and running 2 to 4 miles per day, with onset of pain 30 minutes after prolonged standing that day; the diagnosis was "minor" lumbar muscle strain. At a June 1990 National Guard enlistment examination, the Veteran affirmatively denied all relevant symptoms and conditions; a physical examination was normal/negative. More recently, as it pertains to the lumbar spine, the Veteran underwent a whole body scan in September 2004, which revealed mild central canal stenosis to the left. She completed a comprehensive medical history questionnaire in March 2008, wherein she endorsed multiple other complaints, but not back pain. A physical examination in March 2009 indicated good range of motion without pain and no spinal tenderness. She first complained of low back pain in July 2012. She complained of back pains for 30 years. (The Board observes that this would have been approximately 1982, which corresponds to her active service.) Then in February 2013, she gave a history of pain since 2011, but at that time she also reported chronic low back pain since the 2004 whole body scan. The following month, in March 2013, she reported back pain starting approximately 1 12 years prior. In September 2015 and August 2019, she again reported chronic low back pain since 1980 during service. Overall, this evidence shows a current diagnosis in the low back with current complaints of pain in the right knee and ankle. The Veteran credibly reports symptoms during service, some of which are documented in the STRs. There is inconsistent evidence as to whether she had ongoing symptoms after service. The Board previously remanded these issues in December 2019 to obtain a VA examination addressing the relationship between her service and her current complaints in these joints. The Board specified that the remand was needed because a prior VA examination was insufficient as it did not acknowledge the Veteran's subjective complaints of injuries sustained during service. Upon remand, a VA examination was conducted in March 2020. The examiner diagnosed degenerative arthritis of the spine, but found the right knee and right ankle normal. Regarding etiology, the examiner gave a negative opinion for each joint. Pertaining to the lumbar spine, the VA examiner essentially reasoned that the "medical records are silent for an ongoing diagnosed lower lumbar strain condition" and there was "no evidence of ongoing current chronicity of care." The examiner found a "29+ years of temporal gap" to weigh against a nexus. The examiner found the Veteran's current condition to be a result of the "natural progression of aging." Pertaining to the right knee, the VA examiner reasoned that the "medical records during active duty . . . are silent for a diagnosed right knee condition," so "[a] nexus has not been established." Pertaining to the right ankle, the examiner likewise reasoned that there was "[n]o evidence found during active duty periods confirming a diagnosed right ankle condition." The examiner acknowledged the Veteran's report of an injury during service that was "unresolved and continues." The examiner then found that "[t]here is insufficient evidence noted in medical records to support an ongoing right or left ankle condition with chronicity of care," and again that "[m]edical records are silent for an active duty ongoing right or left ankle condition during active duty . . . with continued care and treatment." The Board finds that this VA examination is again inadequate for several reasons. First, as to the right knee and ankle, the VA examiner found no condition to diagnosis. The examiner did not address whether the Veteran may have pain consistent with a functional loss per Saunders v. Wilkie, 886 F.3d 1356, 1362 (Fed. Cir. 2018); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). Second, this VA examiner impermissibly relied on an absence of documented evidence during service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why an absence of documented treatment or symptoms (as opposed to undocumented symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). The Veteran specifically states that she did not seek treatment for the initial injury. Thus, it is not clear why the examiner was demanding evidence of an undocumented injury. See AZ v. Shinseki, 731 F.3d 1303, 1315-16, 1317-18, n.13 (Fed. Cir. 2013); Fed. R. Evid. 803(6), (7) It is true that that there was an intervening physical examination conducted in June 1990 for purposes of National Guard service at which the Veteran denied all relevant symptomatology. There was also some further conflicting post-service evidence regarding whether her symptoms continued after service. At this point, it appears possible that she was not giving an accurate history in June 1990. To this end, the Board takes notice that she also denied all psychiatric symptomatology even though she is now service-connected for PTSD related to military sexual trauma (MST) which is recognized as first having caused symptoms during her initial period of service. Overall, the conflicting and inconsistent evidence tends to indicate that she has not always been a reliable historian. This impacts her credibility more generally, but also means that she may have inaccurately given a negative history in June 1990 and at the other times. At this stage, however, it is too preliminary to make any ultimate decision as to her credibility. In either event, the March 2020 VA examiner did not cite, or appear to rely on, the June 1990 National Guard examination or the other conflicting statements. Rather, the VA examiner relied on the more generalized conclusion that there was no documented diagnosis during service or continuity of care. The VA examiner opined that the lumbar spine condition was most likely due to the natural progression of aging, but only in the context of repeatedly citing the lack of objective evidence of chronicity of treatment or care. Hence, the opinion is inadequate on this basis. Finally, the Veteran has since raised a secondary theory of entitlement. As relevant, she is now service-connected for (1) PTSD and major depressive disorder; (2) left knee chondromalacia and degenerative arthritis; and (3) bilateral pes planus. Her representative in June 2021 raised a secondary theory of entitlement. A VA examination is not generally warranted based only on a Veteran's own conclusory, generalized statements, such as this, where there is no other supporting evidence in the record. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010). However, as the Board is remanding for a VA opinion on the direct theory, the Board finds that the examiner should also address the secondary theory. 4. Service connection for migraine headaches. The Veteran maintains that she has had headaches beginning during service. See 8/18/2013 Veteran statement. A secondary theory is also raised. She wrote that migraines now occurred during flashback episodes to her MST, which was sometimes associated with the smell of orange peels as they were present during the MST. The Veteran's STRs show complaints headaches on multiple occasions. She sought treatment for a three-day history of headaches in September 1980, which made her dizzy and see spots. The diagnosis was possible migraine. She complained of headaches and stomach cramps in June 1981 in the context of the onset of her menstrual period the day prior. She complained of headaches, plus general malaise, nausea and vomiting, and diarrhea in September 1981, which was diagnosed as rule out flu. She sought treatment in May 1982 for complaints of pain in her left ear and throat, plus headaches, for one week, which was diagnosed as upper respiratory infection. At the June 1990 National Guard enlistment examination, the Veteran denied a history of frequent or severe headaches. After service, the Veteran in April 2013 complained of occasional headaches associated with the smell of oranges. (This was noted as "related to agent orange exposure," which appears to have been a typographical error or misunderstanding on the provider's part.) See 4/3/2013 VA Primary Care consultation. The Veteran was diagnosed with tension headaches in July 2013. See 7/3/2012 VA Women's Health consultation. In January 2014, she sought treatment for chronic intermittent, mild headaches at the temporal area for five months. She claimed a history of migraines with intermittent nausea, triggered only when she "sees someone peeling oranges." See 1/31/2014 VA Women's Healthcare addendum. In February 2014, she reported chronic headaches since the past few months. See 2/7/2014 VA Primary Care. Then, in January 2016, she reported that her medication made her vision blurry and gave her headaches. See 1/25/2016 VA Mental Health. (The Board observes that the provider did not specify which medications to which the Veteran was referring.) In November 2019, she reported difficulties at her workplace because coworkers regularly ate oranges near her work area knowing she was allergic (migraines). In November 2019, she reported headaches and teeth grinding. See 11/29/2019 VA Psychotherapy. As with the other claims, the Board previously remanded these two issues for a VA examination. As it pertains to migraine headaches, upon remand, a VA examiner in March 2020 opined that a diagnosis of a migraine condition could not be confirmed. The VA examiner found that the medical records were silent for a diagnosed headache condition including migraines with an etiology for this examination, and the current symptoms were "subjective only." The examiner also noted that the separation examination was silent for complaints of headaches. The VA examiner's factual foundation was inaccurate and incomplete. First, the March 2020 VA examiner did not account for the considerable evidence of headaches during after service. Hence, it appears the VA examiner was not fully and accurately aware of her medical history. Moreover, the examiner did not conduct any testing to rule in or out migraines, nor did the examiner explain why such testing was unnecessary. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Relatedly, the VA examiner relied on absence in the medical records, but the Veteran had reported in November 2019 that she was seeing a private neurologist for treatment of her headaches. See 11/25/2019 VA Women's Health; 11/29/2019 VA Psychotherapy. Because the private records likely contain the diagnosis the VA examiner found absent, the VA examiner's opinion is insufficient without reviewing these medical records. Upon remand, the Veteran should be given the opportunity to provide a release for these private neurologist's records or obtain the records and provide them to VA. See 38 C.F.R. § 3.159(e)(2). Finally, the VA examiner did not address the secondary theory, which has been reasonably raised. 5. Service connection for a neurobehavior effects disorder, to include as due to contaminated water exposure at Camp Lejeune. For this issue, a VA examination is not warranted, but the missing neurologic records are needed. Specifically, the Veteran underwent a comprehensive Camp Lejeune VA examination in March 2020 by an examiner who is a Subject Matter Expert for the Camp Lejeune Contaminated Water Project. This examiner opined that the diagnosis of neurobehavioral effects is confirmed, but is less likely as not caused by or as a result of the Veteran's exposure at Camp Lejeune. The examiner explained that the Veteran's symptoms are related to her service-connected PTSD and unipolar depression. The examiner gave a cogent and persuasive rationale to support this opinion. A VA PTSD examiner in March 2020 concluded that the Veteran's symptoms are not consistent with neurobehavioral effects. The examiner explained that the Veteran does not have any neurobehavioral condition as neurobehavioral disorders are cognitive, behavioral, and emotional disorders associated with damage or dysfunction in the central nervous symptoms, but this Veteran does not evidence a history of organic brain disease, head trauma, or any other neurological condition that would suggest the presence of these symptoms. Rather, the VA examiner concluded that the Veteran's PTSD adequately accounts for her mental health symptoms including irritability, impulsivity and unpredictability. The Board observes that these two opinions initially appear to be contradictory as to whether the Veteran has a neurobehavioral effects disorder. Based on an overall reading, however, the opinions can be reconciled as both examiners identified the same symptoms as being secondary to her PTSD. Thus, it appears the March 2020 Camp Lejeune examiner classified these symptoms as a diagnosis of neurobehavioral effects, where the March 2020 VA PTSD examiner did not. The critical fact is that they both attributed the same symptoms to PTSD. Thus, there is no material contradiction between the VA examiners' opinions. However, as explained immediately above, the Veteran has been seeking treatment by a private neurologist for her migraine headaches. Both VA examiners identified a diagnosis of neurobehavioral effects as involving the neurologic system. Hence, the private medical records appear potentially relevant to this issue. Therefore, the claim will also be remanded pending receipt of those medical records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private (non-VA) providers or facilities who may have additional medical records, to specifically include the private neurologist treating her for migraine headaches. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed lumbar spine, right knee, and right ankle. The examiner is asked to address each of the following: (a.) Does the Veteran have a current diagnosis in the right knee or right ankle? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. If a current diagnosis is not present, does the Veteran nevertheless have any symptoms, such as pain, causing a functional impairment in the right knee or ankle? For each diagnosis or functional impairment, the examiner must address the following: (b.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease. (c.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that symptoms started during service and continued after service. The examiner is asked to explain why her statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 3. Once all private neurologic treatment records have been obtained pursuant to directive 1, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed migraine headaches. The examiner is asked to address each of the following: (a.) Does the Veteran have a current diagnosis for her headaches? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. For each diagnosis, the examiner must address the following: (b.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including the treatment during service for headaches and her statements indicating that her headaches first started occurring in service. (c.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. This should include consideration of (1) the diagnosis of tension headaches at VA in July 2013; (2) her statements attributing migraines to the smell of oranges, which she relates to her MST, and (3) headaches caused by medication, as reported during VA treatment in January 2016. (Continued on the next page) In answering these questions, the examiner is asked to consider the statements from the Veteran as indicated. The examiner is asked to explain why her statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.