Citation Nr: 22019935 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 14-34 716A DATE: April 3, 2022 ORDER Service connection for residuals of a head injury, to include migraines and memory loss is denied. Service connection for a kidney disorder is denied. REMANDED Service connection for a left knee disorder Service connection for a right knee disorder. FINDING OF FACT The Veteran does not have residuals of a head injury, to include migraines and memory loss, or kidney disorder that had their onset in, or were otherwise caused by, incurred in, or related to service. CONCLUSION OF LAW 1. The criteria for service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a kidney disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to November 1976. The case is on appeal from a March 2014 rating decision. In September 2015, the Veteran testified in support of these and other claims during a hearing at the RO before a Veterans Law Judge (VLJ)of the Board. A transcript of the hearing is of record. That VLJ has since retired and is no longer available to make a final decision in the appeal. In August and November 2019 letters, the Veteran was informed that the VLJ who had presided over that September 2015 hearing was no longer at the Board, and the Veteran consequently was given opportunity to have another hearing before a different VLJ that would decide this appeal. The letters indicated that, if the Veteran did not respond within 30 days, the Board would assume he did not want another hearing and proceed to considering his claims. He did not respond within 30 days of either letter. In December 2016, the Board remanded service connection for left and right knee disorders, kidney disorder, residuals of head injury, and asthma for further development. In an April 2018 rating decision, the RO granted service connection for asthma effective October 31, 2013. As the asthma has been granted in full, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In February 2020, the Board remanded claims of service connection for left and right knee disorders, kidney disorder, and residuals of head injury for additional development. In June 2021, the Board again remanded these claims for further development. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A Veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Analysis 1. Service connection for residuals of a head injury, to include migraines and memory loss. 2. Service connection for a kidney disorder. The Veteran contends that he has residuals of a head injury including migraines and memory loss, caused by an in-service injury. In a May 2014 notice of disagreement (NOD), the Veteran reported experiencing a physical assault, resulting in trauma to the head. Further, he reported experiencing ongoing head injury symptoms since service, to include memory loss. In an August 2014 statement, the Veteran reported that he never recovered from the head injury he incurred in service and still received medical treatment for headaches. At the September 2015 Board hearing, he reported a physical assault to the head with a "blackjack," leaving the Veteran unconscious and then "dazed" for a couple of days. Also, he reported never being examined for a concussion but was recommended by a treatment provider to place an ice bag over the head. The Veteran reported still experiencing residuals from the injury to include constant headaches. Furthermore, the Veteran reported that he believes the kidney disorder could have been caused by a vaccine administered near the buttock or lower back. The Veteran's service personnel records (SPRs) show that he was a basic trainee and was assigned to the Marine Corp Recruit Depot (MCRD) in San Diego, California in August 1976. His service treatment records (STRs) show no reports of or treatment for a head injury or headaches. The November 1976 separation examination shows no reports of a head injury or headaches. The Veteran's post service VA treatment records show that the Veteran was treated for headaches since March 2013. A May 2013 notes shows that the Veteran reported experiencing occasional migraines due to a "hit" in the head in 1976, causing occasional headaches. In April 2014, the Veteran reported headaches for 35 years and explained that had been involved in physical confrontations while in the Marines where he was struck in the head. A care provider in an April 2014 follow up addendum opined that it was "unlikely that an injury sustained 36 years ago would cause headaches now." An April 2016 medical correspondence shows that a care provider found small blood vessel changes in the head but denied tumors or masses as causes of the headaches. A December 2010 hospital record show that the Veteran was treated for a left kidney abnormality. A November 2013 physician discharge summary shows that the Veteran was diagnosed with chronic kidney disease. The VA treatment record also show that the Veteran was treated for chronic kidney stage 3. An August 2013 ultrasound found left and right kidney abnormalities. A September 2014 medical letter shows that kidney deteriorating functions were found. Pursuant to the December 2016, February 2020, and June 2021 Board remands, the RO sent the Veteran correspondence in March 2020, June 2021, and July 2021 requesting that he complete VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA) and VA Form 21-4142a, General Release for Medical Provider Information to the VA to obtained private treatment records from TRA Medical Imaging, Pacific Nephrology Associates, and Allenmore Medical Center which the Veteran had previously identified. Until now, the Veteran has not responded with the requested information to authorize the RO in obtaining further medical records. Thus, the Board finds that the VA has fulfilled its duty to assist the Veteran of this claim. The Board will assume he did not want these treatments records considered and proceed to considering this claim. Pursuant to the December 2016 Board remand, the Veteran was afforded a VA examination in July 2017. He reported worsening headache pain since boot camp with onset in 1977. Also, he reported inability to work during headaches, occurring more than once a month. The examining physician reviewed the claims file and diagnosed the Veteran with migraines. The physician opined that the Veteran's headaches are less likely than not incurred in or were caused by claimed because there was no documentation of complaints of headaches during the Veteran's service. Another VA examination was afforded to the Veteran in July 2017 for headaches. He reported experiencing headaches once a week which he attributed mostly to interpersonal, family stress and reactions to loud and screaming voices. Further, he reported experiencing short term memory problems 9 years prior. The examining psychiatrist reviewed the claims file. The psychiatrist was not able to render a diagnosis because there was no pathology. The psychiatrist opined that the Veteran's headaches were stress related, or tension headaches, not due to service in 1976. Further, the psychiatrist found that the Veteran's memory complaints had only been occurring the last 9 to 10 years, which was many years after service. The psychiatrist opined that likely the memory problems were possibly due to untreated or undiagnosed sleep apnea rather than the head injury in 1976. Further, the psychiatrist found that the Veteran's complaints of being forgetful were occasional and would not merit a diagnosis of cognitive disorder. In April 2018, an addendum opinion was obtained. The examining physician reviewed the claims file and the Veteran's statements. The physician opined that the Veteran's headaches were less likely than not incurred in or caused by the claimed injury because there is no documentation of complaints of headaches during the Veteran's service which lasted 3 months. Also, the physician concluded that there's no evidence that a traumatic head injury during 3 months of service would cause migraine headaches. The examiner also reviewed the Veteran's lay statement regarding his report of kidney symptoms during service, but found that the prior opinion had not changed. The examiner explained that the Veteran was enlisted for 3 months, and there was no documentation of complaints of kidney problems in 1976. The examiner concluded that there was no evidence that this 3 months in service caused his present kidney problems. After a review of the evidence, the Board finds that service connection for residual of a head injury, to include migraines and memory loss, and kidney condition is not warranted. The VA examiner medical opinions of record establish why a nexus to service is unlikely. At present, the Board can find no reason to call into question or otherwise discount the probative weight of the VA s opinions. The opinions are clear and unequivocal, and they were based on the relevant information, including the relevant in-service and post-service information. Moreover, the examiners' explanations are understandable, and all inferences appear to follow from the facts and information given. See Monzingo, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the VA opinions relied on an absence of any in-service documentation of either condition, the rationale is understandable from the context: that the events of the Veteran's service could not have been of sufficient severity to cause the current condition unless the Veteran had sought treatment for it during service. This rationale, even if not explicitly stated, is understandable. See Monzingo, 26 Vet. App. at 105-06 (a VA examination report "must be read as a whole" to determine the examiner's rationale.). The rationale appears sound in light of the fact that the Veteran has not asserted that he sought treatment during service. Moreover, it tends to assume as true that the injury did, in fact occur. Finally, it informs the Board of the medical significance of the absent findings during service. On this basis, the opinion does not impermissibly rely on an absence of evidence as negative absence. See, e.g., 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 Board acknowledges the Veteran's opinion that he is currently suffering from residuals of an in-service head injury because he has headaches and memory problems, and kidney problems in service. The Veteran is not competent to report having kidney problems in service. Whether any symptoms during service were the manifestation of a kidney issue is a complex medical question as the kidneys are internal organs, and it is not common knowledge or readily observable that symptoms in that part of the body must be arising from the kidney. Otherwise, the Veteran is competent to report observable symptoms, such as headaches and difficulty remembering, as they are solely within the perception of the sufferer. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Moreover, it is generally common knowledge that a head injury might lead to such symptoms as headaches and memory problems. However, the question of whether this specific Veteran's symptoms were the result of a head injury is a complex medical matter requiring considering of the severity of the head injury, the potential etiologies for his current symptoms, and whether the in-service head injury is as likely as not the etiology of those current symptoms. These medical questions cannot be considered within the competence of a non-expert lay witness as they involve advanced and complicated medical issues, and it does not appear that the Veteran has a background in medicine or a related field, such that he can be recognized as having medical expertise upon which to base an opinion. Thus, the Veteran, as a lay person, has not established the competence needed to indicate a nexus to service. As such, his opinion is not sufficiently probative to be considered competence evidence tending to increase the likelihood of a positive nexus between his current conditions and service. See Fountain, 27 Vet. App. at 274-75. Accordingly, the evidence is persuasively against the claims. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for residuals of a head injury, to include migraines and memory loss, and a kidney disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a left knee disorder. 2. Service connection for right knee disorder. The Veteran contends that he has a left and right knee disorder related service. In a May 2014 NOD, the Veteran reported experiencing ongoing knee problems since service and inability to walk without problems. In an August 2014 correspondence, the Veteran reported undergoing surgery for both knees. He further reported that during service he was provided with improper service boots. Also, he reported having to march with his own personal shoes for 3 weeks leading to persistent knee damage. At the September 2015 Board hearing, he reported wearing Flag Brother Boots which resulted in a "bad instep," knee pain, and swollen calves. Further, the Veteran reported being assigned to a recruiting depot. Moreover, he reported that he reported knee symptoms to include swelling while in service. He also reported reporting knee symptoms in the mid-1980s and early 1990s when his symptoms began to give him problems. The Veteran reported experiencing swelling when he engaged in recreational activities. He also reported undergoing 2 knee replacement and receiving Social Security Administration (SSA) benefits for knee disabilities due to inability to work and walk. His (STRs) show no reports of or treatment for knee. The November 1976 separation examination shows no reports of knee disorders. The Veteran's post-service private treatment show that the Veteran was treated for left and right knee. A September 2009 x-ray report found moderative degenerative changes and joint effusion of the right knee. A September 2013 medical note shows that the Veteran was diagnosed with ostearthritis of the left knee after complaint of left knee pain. The Veteran's post-service VA treatment records show that the Veteran was treated for left and right knee disorders. A physical therapy discharge notes shows that in September 2014 the Veteran underwent right knee replacement surgery. An orthopedic discharge note shows that the Veteran underwent a knee replacement surgery for the left knee in September 2015. In January 2017, the VA received the SSA records which show that the Veteran was diagnosed with right knee degenerative joint disease in June 2016. Pursuant to the December 2016, February 2020, and June 2021 Board remands, the RO sent the Veteran correspondence in March 2020, June 2021, and July 2021 requesting that he complete a VA Form 21-4142, Authorization to Disclose Information to the VA and VA Form 21-4142a, General Release for Medical Provider Information, to the VA to obtained private treatment records from TRA Medical Imaging, Pacific Nephrology Associates, and Allenmore Medical Center which the Veteran had previously identified. Until now, the Veteran has not responded with the requested information to authorize the RO in obtaining further medical records. Thus, the Board finds that the VA has fulfilled its duty to assist the Veteran of this claim. The Board will assume he did not want these treatments records considered and proceed to considering this claim. Also, pursuant to the December 2016 Board remand, the Veteran was afforded a VA examination in July 2017, April 2018, and August 2018 and for the left and right knee. He reported worsening bilateral knee pain. The examiner reviewed the claims file. The examiner noted osteoarthritis and strain for both knees. The examiner opined that the Veteran's bilateral knee conditions were less likely than not incurred or cause by an in-service injury, event, or illness. The examiner explained that there was no documentation of complaints of knee problems due to footwear problems. Additionally, the examiner remarked there is no evidence during the 3 months in service caused a knee condition. The Board finds that these claims warrant a remand. The opinions so far have opined that there were no documented records to indicate the presence of any knee during service and pointing out to the lack of evidence that such disorders would present themselves during the Veteran's service. Unlike the two claims denied above, the Board finds that the reliance on undocumented symptoms or treatment is unfounded. The Veteran is competent to report such symptoms as having occurred in service. The most recent VA examiner attributed the Veteran's condition to wear and tear. It is a matter of common knowledge or within the experience of ordinary persons to understand that military service, however brief, would involve some degree of wear and tear on the knees. The VA examiner's opinion does not explain why any wear-and-tear during service did not contribute, even if only in part, to the current condition. Conversely, it is not clear from the VA examiner's opinion why it is only the wear-and-tear occurring after service that caused the current condition. Hence, the opinion impermissibly relies on an absence of evidence without an adequate foundation for doing so. 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). These claims are REMANDED for the following action: 1. Forward the claims file to an appropriate examiner for a medical opinion as to the nature and etiology of the left and right knee disorders. The need for an in-person clinical examination of the Veteran should be determined by the examiner. The examiner should: (a.) State whether it is at least as likely as not that the Veteran's current osteoarthritis of the left and right knees had its onset during, or is otherwise related to, his service to include as due to service boots and use of own personal shoes for marching and running. If the examiner determines that the Veteran's condition is due to wear-and-tear over time, the examiner should explain why the wear-and-tear in service did not contribute to the condition. In providing the opinion, the examiner should consider and address the Veteran's statements that he has had bilateral knee issues since service as well as his reports of in-service symptoms. If the examiner has a medical reason to accept or reject the proposition that the Veteran's reports in service and thereafter represented the onset of his current disability, this reasoning should be provided and explained. 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. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.