Citation Nr: 23044643 Decision Date: 08/10/23 Archive Date: 08/10/23 DOCKET NO. 17-61 064 DATE: August 10, 2023 REMANDED Entitlement to service connection for residuals of a head injury, to include migraine headaches (migraine disability) is remanded. Entitlement to service connection for right foot disability, to include pes planus and plantar fasciitis, is remanded. Entitlement to service connection for left foot disability, to include pes planus and plantar fasciitis, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1994 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA). This case was previously before the Board in November 2019 and last before the Board in June 2022, where the Board remanded the issues presently before the Board for further development. Based on review of the record, the Board has recharacterized the Veteran's claim for service connection for a migraine disability as one for entitlement to service connection for residuals of a head injury, to include migraine headaches. See Clemmons v. Shinseki, 23 Vet. App. 1 (2009). The record also indicates the Veteran has multiple foot condition diagnoses. Thus, the Board has also recharacterized the claims for service connection for bilateral flatfoot disabilities as claims for service connection for bilateral foot disabilities, to include pes planus and plantar fasciitis. 1. Entitlement to service connection for residuals of a head injury. The Veteran contends his migraine disability is related to a head injury and concussion sustained in active service. Upon review of the record, the Board finds a remand is needed in order to obtain an adequate VA examination and opinion. The Veteran's service treatment records (STRs) contain no notation of a head injury or concussion in service. The Veteran's July 1997 separation examination notes he denied frequent or severe headaches, nor a history of head injury. However, the Veteran has consistently contended that he has headaches resulting from an in-service head injury, from which he had a concussion and received stiches, resulting in a scar under his left eye. See November 2017 VA Form 9, the Veteran stated. While the etiology of the Veteran's headaches and whether he had a concussion are complex medical questions not capable of lay diagnosis, he is competent to report he was told he had a diagnosis of a concussion, that he had stiches and that he has a scar under his left eye. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). There are two negative nexus opinions of record. The December 2022 and the January 2023 VA medical opinions both concluded that the current migraines were not related to service. However, and significantly, both examiners failed to note the Veteran's contention that he has a scar under his left eye, which could document and support his contention of a head injury in service. Moreover, both examiners relied on an absence of a diagnosis in service as a basis for the opinions. As such, the opinions are inadequate. The Board acknowledges that another December 2022 VA migraine examiner opined it was at least as likely as not that the Veteran's migraines were related to his active service, stating that the Veteran reported a mild concussion with resultant headaches in 1996, that a closed head injury "would lead to migraines being noted on examination[,]" and that despite multiple negative results in the Veteran's STRs, there "could" have been underlying repeated headaches that were not reported. However, the speculative terminology used (there "could" have been underlying repeated unreported headaches) diminishes the probative value of the opinion and does not provide sufficient basis upon which to support the claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). For the reasons noted above, a new examination and opinion are needed prior to the issuance of a decision. 2. Entitlement to service connection for right foot disability. 3. Entitlement to service connection for left foot disability. Upon review of the record, the Board finds that a remand is needed in order to obtain an adequate VA examination and opinion. The Veteran's May 1994 entrance examination indicates that he had an asymptomatic left flatfoot disability at the time he entered service. The Veteran's July 1997 separation examination notes that the Veteran has no foot trouble and makes no mention of his left flatfoot disability. In an August 2020 statement, the Veteran stated that his flatfeet disability was asymptomatic when he entered service but it became symptomatic throughout his years of service due to running and standing in boots for long periods of time. In a December 2022 VA foot examination, the examiner diagnosed bilateral flatfoot disability but opined that the Veteran's left flatfoot disability was not aggravated by service and that his right flatfoot disability was not related to service. The examiner noted that there are no complaints of foot problems in the Veteran's STRs, that the Veteran did not report left foot pain until recently and that he began seeing a podiatrist 2021 for right foot pain. As to both feet, the examiner stated: "There is nexus between this and him running in boots over 20 years prior." Although when read as a whole the examiner's opinion suggests a negative nexus, the examiner's use of the words "There is nexus" leaves the Board unable to determine whether the examiner opined that there is a connection between the Veteran's service and his present bilateral flatfoot disability. In addition, the examiner stated that long-term consequences of working as a parachutist are "typically" arthritic changes, but did not state that these are the only such consequences. This leaves the Board unable to determine if the Veteran's bilateral flatfoot disability is a long-term consequence of working as a parachutist. As to secondary service connection, the VA examiner diagnosed bilateral plantar fasciitis and pes planus. Regarding the Veteran's left foot, the examiner opined that these disabilities had not been aggravated by his service-connected ankle disabilities, but addressed only the causes of the disabilities, not their aggravating factors. Moreover, the conclusion given relates to the Veteran's right foot rather than his left. Regarding the Veteran's right foot, the examiner opined that these disabilities had not been caused by his service-connected ankle disabilities, but discussed only the general causes of the disabilities without consideration of whether those factors were present while the Veteran was in service. For these reasons, this examination is inadequate for Board review. Another December 2022 VA foot examiner concluded that the Veteran's bilateral foot disabilities were unrelated to service because "there is a [20 year] gap of foot pain would not support his claims of chronicity." This opinion is inadequate as it lacks any consideration of the specific circumstances of the Veteran's case, is based upon a lack of contemporaneous medical evidence and is based on the lack of a diagnosis, symptoms or treatment in service. A January 2023 VA foot examiner diagnosed the Veteran with bilateral pes planus and plantar fasciitis but opined it was less likely than not that the disabilities were related to active service. In so concluding, the examiner noted that at separation, the Veteran self-reported he did not have any foot issues and was in good health, and the separation examination is silent for any foot condition. This opinion is based on the absence of a disability in service and is thus inadequate. Further, the VA examiner stated the Veteran's underlying disabilities had been service-connected in error, ignoring the fact that such disabilities are in fact service-connected, and declined to provide an opinion regarding secondary service connection. Remand for such an opinion is therefore required. Finally, the Board notes that the most recent VA treatment records in the claim file are from November 2022. Thus, on remand the Agency of Original Jurisdiction (AOJ) should obtain updated treatment records for the Veteran. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from November 2022 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran, with a different VA examiner than the January 2023 VA migraine examiner, to determine the nature and likely cause of all residuals of a head injury disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all residuals of a head injury disabilities present during the appeal period (from January 2015). (i.) In identifying any such disabilities, opine on whether it can be determined whether the Veteran had a concussion in service. In making such determination, address the contention that he has a scar under his left eye due to stitches he received after the contended in-service concussion. (b.) For each residuals of a head injury disability diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. (i.) In providing the requested opinions, the VA examiner must consider the Veteran's statement that while in service he collided with another service member, had to have stitches under his left eye, had a concussion and has a scar resulting from the stitches. (c.) For each residuals of a head injury disability diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was either caused or aggravated by any of the Veteran's service-connected disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). 3. After the development in (1.) is completed, the AOJ should arrange for a VA examination of the Veteran, with a different VA examiner than the January 2023 VA foot examiner, to determine the nature and likely cause of all foot disabilities. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all foot disabilities present during the appeal period (from July 2013). (b.) For the Veteran's left pes planus disability only, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that that such disability was aggravated beyond its natural progression by the Veteran's military service? Please explain why. (c.) For all other foot disabilities diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. (d.) For each foot disability diagnosed, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was either caused or aggravated by any of the Veteran's service-connected disabilities? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). (i.) In providing the requested opinions, the VA examiner must consider the Veteran's statement that his flatfeet disability was asymptomatic when he entered the military but became symptomatic throughout his years of service due to running and standing in boots for long periods of time. In providing all the above requested opinions, the VA examiner is reminded that the propriety of any past determination of service connection for any of the Veteran's already-service-connected disabilities is not before the examiner; instead, the VA examiner should opine only on whether the Veteran's disabilities that have been determined to be service-connected caused or aggravated his current disabilities. The VA examiner should consider the Veteran's description of his in-service injuries and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The examiner is reminded that a lack of diagnosis or treatment in service is an insufficient basis to determine that no nexus exists. The examiner is further reminded that a lack of contemporaneous medical evidence is an insufficient basis to disregard the Veteran's lay contentions. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. Velez Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dvorak, James T. 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.