Citation Nr: 22016153 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-25 828 DATE: March 21, 2022 ORDER The appeal with respect to entitlement to service connection for depression is dismissed. REMANDED Entitlement to service connection for headaches, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for a low back disability, to include as secondary to service-connected right hip limitation of abduction, adduction, and rotation, right hip limitation of flexion, and right hip limitation of extension (right hip disabilities), is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected right hip disabilities, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right hip disabilities, is remanded. FINDING OF FACT On the record at a February 2020 hearing, prior to the promulgation of an appellate decision on the matter, the Veteran's representative requested that the appeal with respect to entitlement to service connection for depression be withdrawn. CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issue of entitlement to service connection for depression have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service in the Army National Guard, to include a period of active duty for training from August 2004 to January 2005. He also served on active duty in the U.S. Army from September 2006 to October 2009. A May 2012 administrative decision found that the Veteran's period of active service in the Army, from September 2006 to October 2009, was dishonorable for VA purposes. As such, he cannot be awarded VA compensation benefits based on that period of service. Rather, his claims may be considered only as they relate to his other, earlier, and honorable service. 38 C.F.R. § 3.12. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2020, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that other issues are pending on appeal before the Board under the Appeals Modernization Act. They will be the subject of a separate Board decision, if otherwise in order. Dismissal An appeal may be withdrawn as to any or all issues involved in an appeal. 38 C.F.R. § 19.55. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. Id. Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable VA file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. In this case, on the record at his February 2020 hearing, prior to the promulgation of an appellate decision on the matter, the Veteran's representative requested that the appeal with respect to entitlement to service connection for depression be withdrawn. That request has since been reduced to writing in a transcript, received by the Board, which includes the Veteran's name and his VA file number. Under the circumstances, the Board finds that the requirements for a proper withdrawal have been satisfied. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeal of this issue, there remain no allegations of error of fact or law for appellate consideration with respect to this issue. Accordingly, the appeal of this issue must be dismissed. REASONS FOR REMAND 1. Entitlement to service connection for headaches, to include as secondary to service-connected PTSD, is remanded. The Veteran contends that his headaches were incurred in or caused by service. At an August 2015 VA examination, he reported that he was involved in a motor vehicle accident while on leave in December 2004, and that he had been having headaches since the accident. In June 2019, he submitted a lay statement from his mother, who noted that he had minor head injuries from the December 2004 motor vehicle accident. He also contends that his headaches are secondary to his service-connected PTSD, testifying at the February 2020 Board hearing that they were perhaps related. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Degmetich v. Brown, 104 F.3d 1328, 1333 (1997). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As an initial matter, the Board notes that the claims file demonstrates that the Veteran has a current headache disability. May 2018 and July 2018 VA treatment records show treatment, including medication management, for headaches. The Board also finds that the Veteran is competent to establish the presence of his headaches. See Jandreau, supra; Layno, supra. A current disability has therefore been established. The Board notes that the Veteran is also currently service-connected for PTSD. Turning to the service treatment records (STRs), the Board notes that a September 2004 STR shows that the Veteran was seen for a headache during his honorable period of service. The second element of service connection as to an in-service event, injury, or disease has therefore also been established. As to the nexus, or link, between the Veteran's headache disability and his service, he was afforded a Gulf War VA examination in connection with his claims in August 2015. The examiner found that the Veteran had not been diagnosed with headaches and did not have headaches. He further indicated, however, that the Veteran had all of the symptoms of headaches, had characteristic prostrating headache attacks, and further indicated that they were productive of severe economic inadaptability. The examiner also opined that the Veteran did not have headaches from exposures in Southwest Asia. The Board finds that the August 2015 VA examination and opinion is not fully adequate. First, the examiner's finding that the Veteran did not have headaches but that he also had significant symptoms of headaches is internally inconsistent. Second, the examiner does not appear to have considered whether the Veteran's headaches were incurred directly from his honorable period of service, during which time he was treated for headaches; the opinion answers only the question of whether his headaches were incurred during service in Southwest Asia, and as noted, VA benefits cannot be based on that period of service. Finally, because the Veteran did not raise the theory of secondary service connection until after the time of the examination, the examiner was unable to consider that theory of service connection. Under the circumstances, an addendum opinion is warranted. The Board also notes that in a September 2011 submission, the Veteran stated that he was treated at Regional Medical Center in Anniston, Alabama, following his December 2004 motor vehicle accident, and that he has also been treated for pain generally at Columbus Pain Center in Columbus, Georgia. At present, the claims file does not contain records from either of these facilities. Inasmuch as these private treatment records could have a bearing on the outcome of the Veteran's claim, efforts should be made to assist him in obtaining them. See, e.g., 38 C.F.R. § 3.159(e)(2) (if VA becomes aware of the existence of relevant records before deciding a claim, VA will, among other things, request that the claimant provide a release for the records). Updated records of any VA treatment the Veteran has received should also be procured. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected right hip disabilities, is remanded. The Veteran contends that his low back disability was incurred in or caused by service. Specifically, in his May 2017 substantive appeal, he contended that the disability resulted from the continued running and jumping he did during training. At the February 2020 Board hearing, he reiterated that training during service contributed to his back disability, and also testified that he believed that his back disability was secondary to his service-connected right hip disabilities. The United States Court of Appeals for the Federal Circuit has found that the term "disability" as used in 38 U.S.C. § 1110" refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The August 2015 Gulf War VA examiner examined and addressed the Veteran's low back disability. He noted the Veteran's report that he had had low back pain since October 2004 after doing physical training, and that it worsened with the December 2004 motor vehicle accident. He also noted that the Veteran reported functional loss in terms of being limited with lifting and bending. Range of motion was abnormal in all planes tested on examination, but imaging taken at the time was normal. The examiner indicated that the Veteran did not have, and had never been diagnosed with, a thoracolumbar spine condition. The examiner also offered an opinion to the Veteran's "low back pain," but stated only that the condition was not due to exposures in Southwest Asia. In light of the fact that the August 2015 VA examination indicates that the Veteran has low back pain and resulting functional impairment, the Board resolves reasonable doubt in his favor as to the first element of service connection and finds that he has a current low back disability. See Saunders, supra. The Board also notes that the Veteran is currently service-connected for right hip limitation of abduction, adduction, and rotation, right hip limitation of flexion, and right hip limitation of extension. For the same reasons as noted above, regarding the Veteran's claim for service connection for headaches, the Board finds that the August 2015 VA examination is not fully adequate. The examiner did not offer an opinion as to whether the Veteran's low back disability was directly related to his service, to include as due to the physical training he participated in during his honorable period of service. In addition, because the Veteran did not raise the theory of secondary service connection until after the time of the examination, the examiner was unable to consider that theory. Under the circumstances, an addendum opinion is warranted. The Veteran also reported specifically in a September 2011 submission that providers at Columbus Pain Center told him that he had a problem with his back. Because the records of treatment from that facility could bear on the outcome of his appeal, efforts should be made to procure them. The Board has also considered a March 2020 VA treatment record, in which one of the Veteran's providers noted that the Veteran was in a motor vehicle accident while on active duty, and that this resulted in a back injury. The provider added that the low back pain had persisted to the present and was a constant, activity-related intensity. The Board finds that the March 2020 statement is insufficient to support an award of service connection. There is no indication that the provider who made the statement reviewed the Veteran's claims file, to include his STRs. It also appears that the statement regarding the onset and continuation of back problems was based on the Veteran's report alone. Still further, the statement is not supported by sufficient rationale. 3. Entitlement to service connection for a right knee disability, to include as secondary to service-connected right hip disabilities, is remanded. 4. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right hip disabilities, is remanded. The Veteran contends that he has bilateral knee disabilities that were incurred in or caused by service. Specifically, he contended in his May 2017 substantive appeal that his knee issues were a result of repeated marches and trainings during his service. He reiterated at the February 2020 Board hearing that rigorous training during service caused his knee disabilities. He also contended at the hearing that his knee disabilities might be secondary to his service-connected right hip disabilities. Turning first to the STRs, the Board notes that a November 2004 STR shows that the Veteran had right femur pain and limping after a physical training (PT) test the previous week. The August 2015 VA Gulf War examiner examined and addressed the Veteran's knees, though the examination report indicates that the questionnaire was requested and completed only as to the claimed right knee condition. The examiner noted the Veteran's contention that his right knee pain started in September 2004 after physical training, though there was no injury that he could recall. The examiner found that the Veteran had degenerative arthritis of the right knee, which was confirmed by imaging taken at the time. Imaging of the left knee, however, was normal, as was range of motion testing and strength. By contrast, examination of the right knee showed limited range of motion. As with the other examinations, the examiner opined that it was less likely than not that any knee condition was related to exposures during service in Southwest Asia. In light of the above, the Board finds that the evidence clearly demonstrates that the Veteran has a current right knee disability, as shown by the August 2015 VA examination. The evidence at present does not, however, demonstrate that he has a left knee disability. Inasmuch as the August 2015 examination appears to have focused on the right knee, further inquiry must be made regarding whether or not the Veteran has a current left knee disability. The Board also finds that the August 2015 VA opinion is not fully adequate for the same reasons as noted above, in other sections of this decision. Namely, the examiner did not offer an opinion as to whether the Veteran's right knee disability was directly related to his service, focused the opinion on the Veteran's service in Southwest Asia during a period of time when VA benefits are barred, and did not offer an opinion as to secondary service connection. An addendum opinion is warranted. These matters are REMANDED for the following action: 1. Ask the Veteran to provide a release for relevant records of treatment from Regional Medical Center in Anniston, Alabama and from Columbus Pain Center in Columbus, Georgia, and to identify, and provide an appropriate release for, records of any other private care providers who have treated him for the issues on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified and offered the opportunity to submit the records themselves. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to a qualified VA clinician for the purpose of assessing the etiology of the Veteran's headaches. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has a headache disability that had its onset in, or is otherwise attributable to, service. The Board emphasizes that the presence of a current headache disability has been established. In proffering the requested opinion, the examiner should consider a September 2004 STR showing in-service treatment for headaches; the Veteran's contention that his headaches began following a December 2004 motor vehicle accident; and the Veteran's mother's June 2019 lay statement in which she notes that the Veteran had minor head injuries from the December 2004 motor vehicle accident. If the examiner finds that it is unlikely that the Veteran's headache disability had its onset in, or is otherwise attributable to service, he or she should offer a further opinion as to whether it is at least as likely as not that it was a) caused or b) aggravated (i.e., permanently or temporarily worsened beyond its natural progression) by his service-connected PTSD. For all opinions expressed, the examiner should consider that VA benefits may be established only on the basis of the Veteran's period of honorable service, which was from August 2004 to January 2005. The need for another in-person examination, video and/or telephonic interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 4. Also arrange to provide the record on appeal to a qualified VA clinician for the purpose of assessing the etiology of the Veteran's low back disability. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's low back disability had its onset in, or is otherwise attributable to, service. The Board emphasizes that the presence of a current low back disability has been established. In proffering the requested opinion, the examiner should consider the Veteran's contention that continued running and jumping during training caused his low back disability, and that it was worsened by a December 2004 motor vehicle accident. The examiner should also consider a March 2020 VA treatment record in which a provider stated that low back pain had been persistent since the December 2004 motor vehicle accident. If the examiner finds that it is unlikely that the Veteran's low back disability had its onset in, or is otherwise attributable to service, he or she should offer a further opinion as to whether it is at least as likely as not that it was a) caused or b) aggravated (i.e., permanently or temporarily worsened beyond its natural progression) by his service-connected right hip disabilities. For all opinions expressed, the examiner should consider that VA benefits may be established only on the basis of the Veteran's period of honorable service, which was from August 2004 to January 2005. The need for another in-person examination, video and/or telephonic interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 5. Arrange, further, to have the Veteran scheduled for an examination with an appropriate VA clinician for the purpose of assessing the etiology of the Veteran's right knee disability, as well as the nature and etiology of any left knee disability. After examining the Veteran and reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran's right knee disability had its onset in, or is otherwise attributable to, service. In so doing, the examiner should consider the Veteran's contention that his knee issues are a result of repeated marches and trainings during his service. The examiner should also consider a November 2004 STR showing right femur pain and limping a week after physical training. If the examiner finds that it is unlikely that the Veteran's right knee disability had its onset in, or is otherwise attributable to service, he or she should offer a further opinion as to whether it is at least as likely as not that the disability was a) caused or b) aggravated (i.e., permanently or temporarily worsened beyond its natural progression) by his service-connected right hip disabilities. The examiner should also indicate whether the Veteran has had a left knee disability at any time since June 2014 (when he filed his claim for service connection). If, and only if, the examiner finds that the Veteran has had a left knee disability at any time sine June 2014, the examiner should offer a further opinion as to whether it is at least as likely as not that it had its onset in, or is otherwise attributable to, service. In so doing, as above, the examiner should consider the Veteran's contention that his knee issues are a result of repeated marches and trainings during his service. If the examiner finds that it is unlikely that the Veteran's left knee disability had its onset in, or is otherwise attributable to service, he or she should offer a further opinion as to whether it is at least as likely as not that the disability was a) caused or b) aggravated by his service-connected right hip disabilities. For all opinions expressed, the examiner should consider that VA benefits may be established only on the basis of the Veteran's period of honorable service, which was from August 2004 to January 2005. A complete medical rationale for all opinions expressed must be provided. 6. After completing the above, and any other development as may be indicated by any response received as a consequence of the action taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.