MIGRAINE

MATTHEW TENNER · 2023 · Case ID: 23023557

MIXED

Summary

The veteran, who served in the U.S. Army from July 1987 to February 1989, appeals the denial of service connection for headaches secondary to a psychiatric disorder and the denial of compensation under 38 U.S.C. § 1151 for a skin disability. The Board granted service connection for headaches secondary to his acquired psychiatric disorder, noting that while the veteran also claimed direct service connection, the secondary claim was sufficient for an award with the same effective date. The Board found the private physician's opinion linking the headaches to the service-connected psychiatric disorder more credible and probative than the VA examiner's opinion, which was deemed inadequate due to factual inaccuracies and internal inconsistencies. The Board also granted the petition to reopen the claim for compensation under 38 U.S.C. § 1151 for a skin disability, finding that new and material evidence had been received. This evidence, including medical records and testimony, raised a reasonable possibility of substantiating the claim for dissecting cellulitis and hidradenitis suppurativa, which stemmed from VA treatment in 1998. The Board remanded the appeals for increased disability ratings for left parapatellar pain syndrome and right knee chondromalacia, finding the VA examinations inadequate for failing to provide sufficient rationale regarding functional loss due to pain and flare-ups. The claim for section 1151 compensation for skin disability was also remanded for new, adequate medical opinions addressing causation and proximate causation.

Rationale

Private physician opinion found headaches at least as likely as not caused by service-connected depressive disorder.; VA examiner opinion found headaches less likely than not secondary to psychiatric disorder, but was based on inaccurate factual premises and internal inconsistencies.; Board found private physician's opinion more credible and probative.

Service Branch

ARMY

Special Benefit

§1151

Docket No.

10-00 473

Full Decision Text

Citation Nr: 23023557
Decision Date: 04/24/23 Archive Date: 04/24/23

DOCKET NO. 10-00 473
DATE: April 24, 2023

ORDER

Service connection for headaches as secondary to service-connected acquired psychiatric disorder is granted.

New and material evidence having been received, the petition to reopen the claim for compensation under 38 U.S.C. § 1151 for a skin disability, characterized as dissecting cellulitis, is granted.

REMANDED

The appeal for an increased disability rating in excess of 20 percent for service-connected left parapatellar pain syndrome secondary to Osgood-Schlatter's disease is remanded.

The appeal for an increased disability rating in excess of 10 percent for right knee chondromalacia is remanded.

The appeal for compensation under 38 U.S.C. § 1151 for a skin disability, to include dissecting cellulitis and hidradenitis suppurativa, is remanded.

FINDINGS OF FACT

1. The Veteran's headaches are proximately due to his service-connected acquired psychiatric disability.

2. Since the final September 24, 2004, rating decision, new and material evidence has been received that raises a reasonable possibility of substantiating the Veteran's claim for compensation under 38 U.S.C. § 1151 for a skin disability, characterized as dissecting cellulitis.

CONCLUSIONS OF LAW

1. The criteria for service connection for headaches as secondary to service-connected acquired psychiatric disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The September 24, 2004, rating decision that denied compensation under 38 U.S.C. § 1151 for a skin disability is final; however, new and material evidence has been received and, thus, the claim is reopened. 38 U.S.C. §§ 5103A, 5108, 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from July 1987 until his honorable discharge in February 1989.

This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d).

This appeal has an extensive procedural history, and a discussion of that history is necessary.

On December 21, 2006, the Veteran filed an informal claim for increased disability ratings for his bilateral knee disabilities and a claim for compensation under 38 U.S.C. § 1151 for "an infection from a cyst removal that turned into a skin disease." Within January 30, 2008, and November 25, 2008, rating decisions, a Regional Office of the United States Department of Veterans Affairs (VA) denied each claim. The Veteran timely appealed those decisions to the Board and requested a hearing before a Veterans Law Judge. That hearing occurred on August 2, 2010.

In a March 6, 2015, decision, the Board denied the Veteran's appeal for increased disability ratings for his bilateral knee disabilities and for compensation under 38 U.S.C. § 1151 for a skin disease. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).

While the appeal was pending at the Court, the Veteran filed a claim for service connection for a psychiatric disability and for headaches. In a July 23, 2015, rating decision, the VA Regional Office denied his claims. The Veteran timely appealed that decision to the Board and did not request a hearing at the Board.

On June 22, 2017, the Court issued a memorandum decision vacating the Board's March 6, 2015, decision in full and remanding the claims on appeal to the Board for readjudication. The Court's reasons for vacating the decision are discussed further within this decision and order where appropriate.

Following return of the appeal to the Board, the Board merged the Veteran's pending appeal for service connection for an acquired psychiatric disability and headaches with his appeal for increased disability ratings for his bilateral knees and compensation under 38 U.S.C. § 1151. In a March 14, 2018, order, the Board remanded each claim within the appeal to the VA Regional Office for additional development.

The VA Regional Office issued a rating decision on April 14, 2021, granting the Veteran service connection for an acquired psychiatric disability.
decision in full and remanding the claims on appeal to the Board for readjudication. The Court's reasons for vacating the decision are discussed further within this decision and order where appropriate.

The VA Regional Office issued a rating decision on April 14, 2021, granting the Veteran service connection for an acquired psychiatric disability. Thus, that claim is no longer part of the pending appeal. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007) (the grant of a claim of service connection constitutes an award of full benefits sought on an appeal of the denial of a service connection claim). On May 28, 2021, the VA Regional Office issued a Supplemental Statement of the Case continuing denial of the remaining claims on appeal. The appeal has been returned to the Board for readjudication.

With respect to the Veteran's appeal for increased disability ratings for his bilateral knee disabilities and compensation under 38 U.S.C. § 1151, the Veterans Law Judge who held the August 2, 2010, hearing is no longer with the Board. In a February 28, 2023, letter, the Board informed the Veteran that the Judge who heard his testimony was no longer with the Board. The Veteran was offered the opportunity to request another hearing within thirty days from the date of the correspondence. On March 14, 2023, the Board received written correspondence from the Veteran declining another hearing before a different Judge. He requested the appeal be decided based on the evidence of record.

Evidentiary Standards

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). It follows, that when the evidence persuasively favors one side or the other, the benefit-of-the-doubt rule is not applied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128?29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims.

1. Service connection for headaches as secondary to service-connected acquired psychiatric disorder is granted.

The Veteran seeks service connection for headaches, which he asserts are secondary to his service-connected acquired psychiatric disorder. For the reasons that follow, the Board finds it may award service connection on this theory.

The record also reasonably raises the theory of direct service connection because the Veteran reported to a private physician that his headaches had their onset in service. Robinson v. Mansfield, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record). Despite the Veteran's reports of headaches beginning during military service, the Board finds an analysis of direct service connection is not warranted. See generally Bernard v. Brown, 4 Vet. App. 382, 392?93 (1993) (the Board should address potential issues of prejudice).

The Veteran filed his claim for service connection for headaches on February 6, 2015. As will be discussed, he has been service-connected for an acquired psychiatric disorder since February 6, 2015. Thus, the earliest possible effective date for the award of service connection can only be February 6, 2015, under either direct or secondary service connection. Thus, an award of service under secondary service connection will carry the same benefits as an award under direct service connection. Therefore, an analysis of direct service connection is not warranted.

Service Connection
warranted. See generally Bernard v. Brown, 4 Vet. App. 382, 392?93 (1993) (the Board should address potential issues of prejudice).

Service Connection

Service connection may be established on a secondary basis for a disability which is due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) caused by; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Recently, in Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023) the Federal Circuit Court of Appeals held 38 U.S.C. § 1110 employs only "but-for" causation in direct and secondary service connection claims. Hence, a service-connected disability need only be a contributing cause, not the contributing cause, to establish secondary service connection.

Analysis

First element: A current disability

The Veteran submitted a Disability Benefits Questionnaire completed by a private physician on December 1, 2016. The physician diagnosed the Veteran with tension headaches. He received an examination from a VA-contracted examiner in May 2020. That examiner also diagnosed the Veteran with tension headaches. The Board finds the Veteran has a current disability of tension headaches.

Second element: A current service-connected disability

The Veteran is currently service connected for depressive disorder. He has been service connected for this disability since February 6, 2015. This evidence satisfies the second element.

Third element: A causal link

There are two competing medical opinions of record. First, the private medical physician who complete the December 2016 examination opined that the Veteran's headaches are at least as likely as not caused by his service-connected depressive disorder. The examiner relied on medical research, which the Veteran submitted, reporting that mental health conditions are more likely to lead to the development headaches because pain and mood are actually regulated by the same part of the brain. The Veteran reported to the physician that when his depression symptoms occurred, he incurred headaches. The Board finds the examiner's opinion is supported by a sufficient rationale, which took into account the Veteran's lay reports of his symptoms, his medical records, and medical knowledge among the professional community.

A VA-contracted examiner offered an opinion in May 2021. He opined that the Veteran's headaches were less likely than not secondary to his psychiatric disorder. He first stated that the Veteran reported conflicting information. According to the examiner, the Veteran said his headaches began in service but now claimed they were due to his psychiatric disorder. The examiner's conclusion is not accurate. The Veteran indeed reported that his headaches began during service. But this is not necessarily conflicting information. For instance, his headaches in service may not have been the same type of headaches he has now. The examiner has not offered any medical reason for his conclusion to the contrary. Instead, the examiner concluded the Veteran's headaches were due to his cervicalgia. Yet, the examiner acknowledged "psychological events may trigger a tension headache due to stress or anxiety." The Board finds the examiner's rationale is internally inconsistent and based on faulty reasoning.

The Board finds the private physician's December 2016 is the most credible and probative evidence of record addressing the etiology of the Veteran's headaches. This evidence satisfies the third element.

Accordingly, service connection for headaches as secondary to service-connected acquired psychiatric disorder is granted.

2. New and material evidence having been received, the petition to reopen the claim for compensation under 38 U.S.C. § 1151 for a skin disability, characterized as dissecting cellulitis, is granted.

Scope of the Claim

In the Court's June 22, 2017, memorandum decision, it instructed the Board to address the scope of the Veteran's claim for compensation under 38 U.S.C. § 1151. On remand form the Court, the Board issued a March 14, 2018, order remanding this claim
the etiology of the Veteran's headaches. This evidence satisfies the third element.

Accordingly, service connection for headaches as secondary to service-connected acquired psychiatric disorder is granted.

2. New and material evidence having been received, the petition to reopen the claim for compensation under 38 U.S.C. § 1151 for a skin disability, characterized as dissecting cellulitis, is granted.

Scope of the Claim

In the Court's June 22, 2017, memorandum decision, it instructed the Board to address the scope of the Veteran's claim for compensation under 38 U.S.C. § 1151. On remand form the Court, the Board issued a March 14, 2018, order remanding this claim to the VA Regional Office for additional development. The Board did not address the scope of the claim as the Court directed. The Board does so now.

On January 12, 2004, the Veteran filed an informal claim for compensation under 38 U.S.C. § 1151, which he identified as "a scalp and skin problem" from surgery at a VA dermatology center in November 1998. The medical records associated with his claims file at that time documented he sought treatment in October 1998 at a VA medical center for cysts on his scalp and facial area. In November 1998, he underwent a procedure at a VA medical facility documented in his medical records as "multiple punch[es]." The medical record states: "lesions clinically resemble acne keloidalis nuchae." Keloid acne is the "development of persistent, hard, follicular plaques along the posterior hairline of the scalp that fuse to form a thick, sclerotic, hypertrophic, pseudokeloidal band extending across the occiput; usually occurring in males of black African descent." Dorland's Illustrated Medical Dictionary 71 (32 ed. 2012) [hereinafter Dorland's]. "Nuchae" refers to the neck. Id. at 1293. During a follow-up visit approximately a week later, the Veteran was diagnosed with dissecting cellulitis on the scalp in the area of the surgical procedure. Dissecting cellulitis is "a rare chronic suppurative disease of the scalp, usually seen in young adults, especially men, marked by numerous follicular and perifollicular reactions with formation of nodules that become fluctuant and rupture to produce intercommunicating draining sinuses; upon healing, they leave severe scarring and alopecia." Dorland's at 1413.

VA medical records from 1999 to 2003 documented the various treatments for his skin conditions subsequent to his procedure. A June 1999 record documented malignancy was present with lesions, which were diagnosed as keloidalis. February 2000, June 2001, and June 2002 medical records documented lesions behind the neck, keloids infecting his scalp, and small cysts on his posterior head. An October 2002 medical record documented that the Veteran presented with scalp folliculitis with keloid/abscess formation status post excision, acne, and occasional intertriginous boils. In a January 2003 medical record, he asserted that his subsequent skin conditions were due to his November 1998 cyst-removal procedure. Medical records throughout 2003 continued to document acne keloidalis nuchae.

In a February 2004 VA dermatology record, the Veteran reported skin changes, which included new lesions on his back and groin. He was diagnosed with hidradenitis suppurativa in his groin. Hidradenitis suppurativa is "a chronic suppurative disease of skin that bears apocrine sweat glands," usually in the armpit and groin areas, "caused by occlusion of pores with secondary bacterial infection of the glands. Tender red abscesses develop, enlarge, and eventually break through the skin, yielding purulent or seropurulent drainage." Dorland's at 859.

In a September 24, 2004, decision, the VA Regional Office denied compensation under section 1151 for "residuals of keloids (claimed as scalp and skin problem from dermatology surgery)." The VA Regional Office's decision only concluded that "[t]here was no evidence of wrongful conduct" because the Veteran was informed his "treatment for cyst and keloids could result in bleeding, infection, reaction to local anesthesia, reoccurrence and scar tissue formation." The Veteran did not appeal that decision and it became final-discussed in detail later in this decision.

In October and November 2006, the Veteran underwent axillary resection surgery at a VA medical facility to treat his axillary hidradenitis. Axillary refers to the armpit. See Dorland's at 185 (axilla).

On December 21, 200
residuals of keloids (claimed as scalp and skin problem from dermatology surgery)." The VA Regional Office's decision only concluded that "[t]here was no evidence of wrongful conduct" because the Veteran was informed his "treatment for cyst and keloids could result in bleeding, infection, reaction to local anesthesia, reoccurrence and scar tissue formation." The Veteran did not appeal that decision and it became final-discussed in detail later in this decision.

On December 21, 2006, the Veteran filed an informal claim for compensation under 38 U.S.C. § 1151 for "an infection from a cyst removal that turned into a skin disease." On April 26, 2007, he submitted a letter stating, "I want to add to my disability claim scarring left from surgery done because of the infection by dermatology which removed the disease call[ed] hidradenitis suppurativa." On April 30, 2007, he submitted VA Form 21-4138, Statement in Support of Claim, stating, he "never had this skin disease prior to surgery at the VA."

The VA Regional Office denied the Veteran's claim for compensation under section 1151. January 30, 2008, Rating Decision. As recognized by the Court in its memorandum decision, the VA Regional Office "appeared to treat [the Veteran's] claim for benefits under section 1151 as a new claim, rather than as one to reopen his previously denied claim for benefit under section 1151." Memorandum Decision, at 3. The VA Regional Office stated:

You had previously been denied entitlement to compensation as a result of VA medical care by rating decision of September 24, 2004. The evidence showed that you had a cyst excised at the VA clinic. The evidence showed that you were properly treated with removal, antibiotics[,] and steroids. You have now filed a claim because you had extensive surgery for hidradenitis suppurativa in October 2006 with reconstructive surgery in November 2006.

January 30, 2008, Rating Decision. The VA Regional Office did address the scope of the Veteran's 2006 claim, and thus "did not consider whether new and material evidence had been submitted to reopen the previously denied claim, but simply found no evidence that the 2006 VA procedures were the proximate cause of any additional disability." Memorandum Decision, at 3.

For the following reasons, the Board finds the Veteran's December 21, 2006, claim for compensation under section 1151 encompasses his previously denied claim for compensation under section 1151 for dissecting cellulitis.

VA regulations recognized both formal and informal claims at the time the Veteran filed his claim in 2006. 38 C.F.R. § 3.1(p) (2006). In March 2015, VA changed its regulation to standardize how claims are filed and eliminated informal claims, see 38 C.F.R. § 3.155 ("How to file a claim"); thus, the analysis in this appeal pertains only to claims filed under the pre-March 2015 regulations.

Cases such as Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), Szemrai v. Principi, 357 F.3d 1373 (Fed. Cir. 2003), Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir. 2019), and Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020) set out how to assess the scope of a pleading to determine whether it includes an informal claim for benefits. This inquiry centers on the language of the pleading and extends to various medical records to which the pleadings refer. Shea, 926 F.3d at 1369.

Here, the Veteran's December 21, 2006, informal claim clearly identified that he was seeking compensation under 1151 for treatment received at a VA dermatology clinic that he asserted resulted in an infection "that turned into a skin disease." The Board finds this language only identified his dissecting cellulitis, which was characterized by the 2004 rating decision as "residuals of keloids." The Board's conclusion is supported by the Veteran's subsequent correspondence in April 2007, in which he requested "to add" his hidradenitis suppurativa to his pending claim. He would not need "to add" his hidradenitis suppurativa to the
926 F.3d at 1369.

As the development of the claim progressed, the December 2006 claim reasonably encompassed the Veteran's hidradenitis suppurativa. Cases such as Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000), Robinson v. Peake, 21 Vet. App. 545 (2008), Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), and DeLisio v. Shinseki, 25 Vet. App. 45 (2011) are useful for assessing the scope of a claim once the duty to assist has attached and evidentiary development has begun. In these cases, the scope of the claim includes not only issues raised in the pleadings but also the entire evidentiary record as the case develops over time. DeLisio, 25 Vet. App. at 53 ("Overall, the scope of the claim will be based on a sympathetic assessment of 'the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim,' i.e. the information gathered upon investigation.") (quoting Clemons, 23 Vet. App. at 5). The Veteran was diagnosed with hidradenitis suppurativa, a skin condition, which he asserts stems from his initial VA treatment. Thus, it is proper to expand the scope of the claim to include that condition.

In sum, the Veteran's December 21, 2006, claim for compensation under 38 U.S.C. § 1151 encompassed his previously denied claim for compensation for dissecting cellulitis. Once the Veteran filed his April 26, 2007, correspondence identifying his hidradenitis suppurativa and requesting compensation for the same, his December 21, 2006, claim then encompassed that skin condition as well because the Veteran asserts it stems from the same initial VA medical treatment.

New and Material Evidence

To appeal a rating decision, the appellant must file a "notice of disagreement" "within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction." 38 U.S.C. § 7105(b)(1)(A); 38 C.F.R. § 3.156. A notice of disagreement must be submitted in writing and identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(b)(2)(A). If no notice of disagreement is filed within the prescribed period, the action or decision of the agency of original jurisdiction becomes "final" from the date notice was mailed. 38 U.S.C. § 7105(c). Under the Legacy appeal process, a claimant "may reopen a finally adjudicated legacy claim by submitting new and material evidence." 38 C.F.R. § 3.156(a).

When a claimant submits new and material evidence within one year of a VA Regional Office's rating decision before the decision becomes final, the claim remains pending until VA determines whether such evidence is new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(b); Turner v. Shulkin, 29 Vet. App. 207, 211 (2018). If new and material evidence is submitted before expiration of the one-year period to appeal a VA Regional Office decision to the Board, then the evidence will be considered as having been filed as part of the claim that was pending when the appeal period began. See Mitchell v. McDonald, 27 Vet. App. 431, 434 (2015).

"New evidence" "is evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.156(a). VA is required to presume the credibility of newly submitted evidence for the
38 C.F.R. § 3.156(b); Turner v. Shulkin, 29 Vet. App. 207, 211 (2018). If new and material evidence is submitted before expiration of the one-year period to appeal a VA Regional Office decision to the Board, then the evidence will be considered as having been filed as part of the claim that was pending when the appeal period began. See Mitchell v. McDonald, 27 Vet. App. 431, 434 (2015).

"New evidence" "is evidence not previously part of the actual record before agency adjudicators." 38 C.F.R. § 3.156(a). VA is required to presume the credibility of newly submitted evidence for the purposes of determining whether that evidence is material and sufficient to reopen a previously denied claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "Material evidence" means "evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a).

"New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim and must raise a reasonable possibility of substantiating the claim." 38 C.F.R. § 3.156(a). The language of section 3.156(a) "does not require new and material evidence as to each previously unproven element of a claim"; instead, it compels reopening whenever a claimant submits new and material evidence "as to an unestablished fact from the previously denied claim." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In Shade, the Court held that the language of section 3.156(a), requiring the new evidence raise a reasonable possibility of substantiating the claim, is an analytical guide that creates a low threshold rather than a separate element. Id. at 117. In determining whether the low threshold is met, however, VA should consider whether the new and material evidence could, if the claim were reopened, reasonably substantiate the claim, to include triggering VA's duty to assist or through consideration of an alternative theory of entitlement not previously established by the evidence, id. at 117?19, but not including "presentation of new arguments based on evidence already of record at the time of the previous decision," Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (emphasis added).

The Board must address the issue of whether new and material evidence has been received regardless of the VA Regional Office's determination, since this initial determination affects the Board's jurisdiction to adjudicate the appeal on the underlying merits. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).

Analysis

As discussed, the VA Regional Office's September 24, 2004, rating decision that denied compensation under section 1151 for dissecting cellulitis, characterized as residuals of keloids, is final. New and material evidence was not received within one year of notice of the decision, and the Veteran did not otherwise appeal that decision. Significantly, the decision did not address hidradenitis suppurativa because it had not yet manifested. Thus, the Veteran is only required to establish new and material evidence with respect to his dissecting cellulitis, characterized as residuals of keloids.

Since the September 24, 2004, final decision, the Veteran has submitted additional medical records, which identify a continuing diagnosis of acne keloidalis nuchae on his scalp and face. There is also medical evidence that his skin condition may have progressed to other parts of his body. In August 2010, he provided testimony about the onset of his skin condition. In 2012 and 2019, the VA Regional Office obtained medical opinions addressing the etiology of the Veteran's skin condition. For reasons to be discussed later, the Court determined the 2012 opinions obtained by VA were inadequate, and the Board finds 2019 opinions are also inadequate. When all of this evidence is viewed collectively, it is new because it was not before the VA Regional Office during the September 24, 2004, decision, and it is material as it tends to raise a reasonable possibility of substantiating the claim for compensation under 1151. In particular, the evidence implicates VA's duty to assist the Veteran in developing his claim.

Accordingly, resolving any reasonable doubt in the Veteran's favor, the Board finds new and material evidence has been received, and thus the petition to reopen the claim for compensation under 38 U.S.C. § 1151 for a skin disability, characterized as dissecting cellulitis
by VA were inadequate, and the Board finds 2019 opinions are also inadequate. When all of this evidence is viewed collectively, it is new because it was not before the VA Regional Office during the September 24, 2004, decision, and it is material as it tends to raise a reasonable possibility of substantiating the claim for compensation under 1151. In particular, the evidence implicates VA's duty to assist the Veteran in developing his claim.

REASONS FOR REMAND

1. The appeal for an increased disability rating in excess of 20 percent for service-connected left parapatellar pain syndrome secondary to Osgood-Schlatter's disease is remanded.

2. The appeal for an increased disability rating in excess of 10 percent for right knee chondromalacia is remanded.

On December 21, 2006, the Veteran filed a claim for increased disability ratings for his bilateral knee disabilities. The VA Regional Office issued decisions on January 30, 2008, and November 25, 2008, denying his claims. The Veteran timely appealed. Following multiple remands to the VA Regional Office, the Board issued a decision on March 6, 2015, denying his claims. The Veteran appealed the Board's decision to the Court.

The Court determined the Board erred by relying on an inadequate VA examination dated in July 2014 because the examiner failed to comply with the requirements of Deluca v. Brown, 8 Vet. App. 202 (1995) (examiner specifically must "express an opinion on whether pain could significantly limit functional ability during flare-ups or [on repetitive use] over a period of time," and the examiner's determination in that regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.") and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (when an examiner fails to address functional loss during flare-ups, the examination lacks sufficient detail necessary to permit the assignment of a disability rating). Thus, the Court vacated the Board's decision and remanded the appeal for readjudication, instructing the Board to obtain an adequate examination.

In a March 14, 2018, remand order, the Board instructed the VA Regional Office to obtain a new examination assessing the Veteran's knees. That examination occurred in October 2019. The examination is inadequate. Despite the Veteran's report of flare-ups, the examiner offered no estimation of additional loss of range of motion in either knee. This is the same flaw contained within the July 2014 examination. The examiner recorded: "Veteran declined to describe or demonstrate range of motion during flares. Veteran[] states[,] 'I never checked. When it flares up[.] I sit down.'" This is an insufficient reason for not estimating additional range-of-motion loss.

Before accepting an as adequate an examiner's statement that he or she could not offer an opinion without resorting to speculation, it must be clear that an examiner has "considered all procurable and assembled data" before stating that an opinion cannot be reached. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (internal quotation marks omitted). When the record is unclear as to whether a VA examiner has done this-for example, "by obtaining all tests and records that might reasonably illuminate the medical analysis"-the Board must remand the matter for clarification or additional development. Id. Second, the examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Id. In other words, it must be apparent that the inability to provide an opinion without resorting to speculation "reflect[s] the limitation of knowledge in the medical community at large" and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner. Id. As part of this obligation, a VA examiner should identify when specific facts cannot be determined. Id. Thus, the Board may accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed.

In this appeal, the Board finds the examiner's opinion explaining why the requested opinions could not be offered is insufficient. The Veteran did not "decline" to describe his symptoms as stated by the examiner. The Veteran readily
-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner. Id. As part of this obligation, a VA examiner should identify when specific facts cannot be determined. Id. Thus, the Board may accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed.

In this appeal, the Board finds the examiner's opinion explaining why the requested opinions could not be offered is insufficient. The Veteran did not "decline" to describe his symptoms as stated by the examiner. The Veteran readily described his pain during a flare-up and how he alleviated his pain through rest. Rather, it appears to the Board that the examiner did not request the Veteran to describe his full range symptoms. Instead, the examiner only requested the Veteran demonstrate his limitation of motion. He was unable to demonstrate his limitation because he never paid attention to that. Thus, the examiner's basis for declining to offer a range-of-motion estimation was not due to lack of information but instated due to the lack of development of information. Thus, remand is required for a new examination.

In addition, the Board observes the Veteran submitted additional evidence in relation to his bilateral knee disabilities following issuance of the most recent Supplemental Statement of the Case dated May 28, 2021. 38 U.S.C. § 7104(a) provides that all matters "subject to decision by the Secretary shall be subject to one review on appeal to the Secretary." The Federal Circuit interpreted this statute to mean that the Board could not consider new evidence in the first instance without first receiving a waiver from a veteran to do so. Disabled Am. Veterans v. Sec'y of Veteran Affs., 327 F.3d 1339, 1353 (Fed. Cir. 2003). Congress abrogated that rule when it amended 38 U.S.C. § 7105(e)(1), which created a presumptive waiver of such evidence. See 38 U.S.C. § 7105(e)(1) (2012), (effective February 2, 2013)); see also Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, S5154, 112th Cong. § 2 (2012) (amending the requirement that the VA Regional Office must review new evidence once "by creating a new subsection, (e), to incorporate an automatic waiver of the right to initial consideration of" evidence submitted "concurrently with or after the filing of a substantive appeal"). But importantly, this waiver provision only applies to appeals that were certified to the Board after February 2, 2013. Here, the Veteran's claims for increased disability ratings for his service-connected bilateral knee disabilities were certified to the Board on May 10, 2010. As such, a waiver is required from the Veteran for the Board to consider his evidence in the first instance, which he has not submitted. Thus, remand is also required to the VA Regional Office so that it may consider the evidence in the first instance.

3. The appeal for compensation under 38 U.S.C. § 1151 for a skin disability, to include dissecting cellulitis and hidradenitis suppurativa, is remanded.

The VA Regional Office obtained a medical opinion addressing the Veteran's compensation claim for his skin condition in May 2012. The Court found the opinion inadequate for several reasons. Most significantly, it conflated the Veteran's skin diagnoses, offering an opinion as to hidradenitis suppurativa but not his dissecting cellulitis. In the Board's March 2018 order, it directed the VA Regional Office to obtain a new medical opinion, which the VA accomplished. But the opinions obtained on remand are also inadequate.

In October 2019, a VA examiner offered several opinions addressing the Veteran's skin condition. The examiner began her opinion by discussing the Veteran's medical history. First, she noted the Veteran requested evaluation of his cysts in August 1998 at a VA medical center. He underwent multiple punch biopsy in November 1998. The examiner opined the Veteran's treatment up to that point was reasonable.

But the examiner then stated that "the Veteran's records were silent for skin complaints until June 22, 2001, when he complained of lesions in his scalp and beard." That is not factually accurate. June 23, 1999, and February 1, 2000, VA medical records document follow-up treatment for keloidalis acne nuchae, presence of malignancy, and lesions, which were present on his neck and scalp. Generally, opinions that rest on inaccurate factual premises have no
the Veteran requested evaluation of his cysts in August 1998 at a VA medical center. He underwent multiple punch biopsy in November 1998. The examiner opined the Veteran's treatment up to that point was reasonable.

But the examiner then stated that "the Veteran's records were silent for skin complaints until June 22, 2001, when he complained of lesions in his scalp and beard." That is not factually accurate. June 23, 1999, and February 1, 2000, VA medical records document follow-up treatment for keloidalis acne nuchae, presence of malignancy, and lesions, which were present on his neck and scalp. Generally, opinions that rest on inaccurate factual premises have no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

Next, the examiner discussed the Veteran's skin treatment from June 2001. The examiner noted he experienced lesions on his scalp and beard area, which was diagnosed as folliculitis and treated with antibiotics. In June 2002, he was diagnosed with acne keloidalis, which was treated with antibiotics. In April 2003, he was diagnosed with hidradenitis suppurativa in his groin area for the first time. He underwent three surgeries, which the examiner opined were appropriately staged for his condition. The examiner discussed the etiology of hidradenitis suppurativa, stating that it is often not diagnosed until later stages of the disease "because the symptoms are synchronous with those of other similar conditions." Thus, it is a "diagnosis of exclusion."

After the foregoing discussion, the examiner offered four opinions. First, the examiner opined that "the claimed disability of 38 U.S.C. § 1151, for dissecting cellulitis and chronic skin disorders of the face, neck, chest, and lower extremities was less likely than not caused by or became worse as a result of the VA treatment at issue. Treatments were administered within acceptable practice." But the examined found the gaps in treatment were at the Veteran's discernment with several failures to follow up. The Board does not understand this rationale as it does not explain why the Veteran's treatments were reasonable or what effect the Veteran's personal choices/actions had on his treatment. The incorrect factual premise asserted by the examiner, that the Veteran did not have treatment between 1998 and 2001, also renders this opinion inadequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding an examiner may not merely list facts and conclusions with no reasoned explanation connecting the two).

Second, the examiner opined that it was less likely than not the Veteran had an additional disability resulting from VA's failure to follow appropriate standards of care. The Board finds the opinion conflates the questions asked of the examiner. Whether the Veteran has an "additional disability" under section 1151 is a separate question from whether VA exercised reasonable care. In addition, the examiner's rationale does not explain why the treatment was reasonable. Id. at 304 ("It is the fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.").

Third, the examiner opined it was less likely than not an additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. Again, whether the Veteran has an additional disability is a separate question from what caused such disability. In addition, to support her rationale, the examiner only addressed hidradenitis suppurativa, making no mention of the Veteran's dissecting cellulitis. Thus, the opinion does not address all skin conditions identified by the record.

Finally, the examiner opined it was less likely than not that failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The same rationale was offered as for the directly preceding opinion. Thus, this opinion is too inadequate for the same reasons.

In sum, the October 2019 medical opinions are not adequate. The examiner relied on inaccurate factual premise and the opinions are not supported by adequate rationales. Thus, remand is required to obtain new opinions.

Accordingly, the matters are REMANDED for the following actions:

1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. Invite the Veteran to identify and submit any additional private medical records relevant to his claim on appeal.

2. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician as to the Veteran's bilateral knee disabilities. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order.

The examiner must report all signs and symptoms necessary to evaluate the
inaccurate factual premise and the opinions are not supported by adequate rationales. Thus, remand is required to obtain new opinions.

Accordingly, the matters are REMANDED for the following actions:

The examiner must report all signs and symptoms necessary to evaluate the Veteran's bilateral knee disabilities under the appropriate rating criteria. In particular, the examiner must provide range-of-motion test results (in degrees) as to the joint affected and of the opposite, undamaged joint, if possible, on (i) active motion, (ii) passive motion, (ii) weight-bearing, and (iv) non-weight-bearing. If the examiner cannot assess the motion of the opposite, undamaged joint, the examiner must explain why the assessment is not possible.

In addition, the examiner is asked to opine whether the Veteran experiences functional impairment of the affected joint due to pain. If the Veteran does experience pain during regular diagnostic testing, the examiner must (i) clearly indicate the exact degree of movement at which pain limits motion in the affected joint and (ii) include the findings of at least three repetitions of range-of-motion testing. If there is no pain and/or no limitation of function, such facts must be noted in the report.

In addition, the examiner is asked to give an opinion on whether pain could significantly limit functional ability during (i) flare-ups and (ii) with repeated use over a period of time. If there is functional impairment found during flare-ups or with repeated use over a period of time due to pain, the examiner must provide, if feasible, the degree of additional limitation of motion.

If the Veteran reports experiencing flare-ups and the examination does not take place during a flare-up, the examiner must obtain information from the Veteran, medical records, and any other reasonably available source regarding the severity, frequency, duration, and functional loss manifestations associated with such flare-ups. Efforts to obtain such information should be documented.

The examiner is reminded to consider the Veteran's lay statements as he is competent to report his symptoms, past medical history, and experiences.

The examiner must not opine on the credibility of the Veteran. The examiner may, however, discuss whether there is any medical reason to accept or reject the Veteran's assertions. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011).

If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should explain what evidence is required to offer an opinion and why such evidence cannot be obtained.

3. Obtain an addendum opinion from an appropriately qualified clinician addressing the development of the Veteran's skin disability, to include but not limited to dissecting cellulitis and hidradenitis suppurativa, in relation to his VA medical treatment. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. If the examiner decides an examination is necessary, then one shall be provided.

The examiner is asked to provide opinions regarding the following:

Additional Disability

The following question pertains to whether the Veteran has an "additional disability":

(a.) Following the Veteran's VA skin treatment in November 1998, is it at least as likely as not (a likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran developed an "additional disability" characterized as a skin disability, to include, but not limited to, dissecting cellulitis and hidradenitis suppurativa? Please explain your conclusion.

For the examiner's information: "To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, [or] examination, . . . upon which the claim is based to the veteran's condition after such care, treatment, examination, [or] services . . . has stopped." 38 C.F.R. § 3.361(b) (emphasis added).

Qualifying Additional Disability

If the Veteran does have an "additional disability," the examiner is asked to address the following questions pertaining to whether the
a skin disability, to include, but not limited to, dissecting cellulitis and hidradenitis suppurativa? Please explain your conclusion.

Qualifying Additional Disability

If the Veteran does have an "additional disability," the examiner is asked to address the following questions pertaining to whether the Veteran has a "qualifying additional disability":

Actual Causation

(a.) Is it at least as likely as not (a likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's additional skin disability would naturally have occurred or progressed without VA medical care? Please explain your conclusion fully.

(b.) Is it at least as likely as not (a likelihood is at least approximately balanced or nearly equal, if not higher) that VA hospital care, or surgical treatment, or examination furnished the veteran, or lack thereof, was a contributing cause to the occurrence or progression of the Veteran's additional skin disability? This includes consideration of whether VA failed to timely diagnose and properly treat the initial skin disability such that it caused the continuance or natural progress of the additional skin disability. Please explain your conclusion fully.

(c.) Is it at least as likely as not (a likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran engaged in any willful misconduct, such that his additional skin disability was the result of his own failure to follow medical directions? Please explain your conclusion fully.

For the examiner's information: There may be more than one actual cause of the Veteran's additional skin disability.

For the examiner's information: "Actual causation" is established by evidence showing "that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause." 38 C.F.R. § 3.361(c)(1). "Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress." 38 C.F.R. § 3.361(c)(2).

Proximate Causation

(d.) If the condition that led to an additional skin disability was actually caused by VA hospital care, medical or surgical treatment, examination furnished the veteran, or lack thereof, was such condition that led to his additional skin disability at least as likely as not (a likelihood is at least approximately balanced or nearly equal, if not higher) caused by VA's failure to exercise the degree of care that would be expected of a reasonable health care provider? This is generally referred to as carelessness, negligence, or lack of proper skill. Please explain your conclusion fully.

(e.) If the condition that led to his additional skin disability was actually caused by VA hospital care, medical or surgical treatment, examination furnished the veteran, or lack thereof, was his additional skin disability at least as likely as not (a likelihood is at least approximately balanced or nearly equal, if not higher) an event not reasonably foreseeable from the objective viewpoint of a reasonable health care provider? Consider whether this was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Please explain your conclusion fully.

For the examiner's information: The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2).

(f.) If the condition that led to his additional skin disability was actually caused by VA hospital care, medical or surgical treatment, examination furnished the veteran, or lack thereof, is it at least as likely as not (a likelihood is at least approximately balanced or nearly equal, if not higher), from the objective viewpoint of a reasonable health care provider, that VA provided proper informed consent to the Veteran during the course of his treatment? Please explain your conclusion fully.

For the examiner's information: The definition of "informed consent" is found in 38 C.F.R. § 17.32(c).

The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his skin disability as he is legally permitted
)(2).

For the examiner's information: The definition of "informed consent" is found in 38 C.F.R. § 17.32(c).

The examiner is reminded to consider the Veteran's lay statements regarding the nature and onset of his skin disability as he is legally permitted to report his symptoms, past medical history, and experiences.

A clear and detailed rationale for the opinion(s), including a discussion of the facts and medical principles involved, should be provided as it will be of considerable assistance to the Board. Please do not simply list the facts on which you relied.

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If the examiner relies on medical treatises, the examiner should identify and discuss the treatises.

If the examiner believes that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should explain what evidence is necessary to render an opinion and why such evidence is not obtainable.

Matthew Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. F. Sawka

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.

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