Citation Nr: 1609888 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 10-02 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a head injury, to include headaches. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. When the case was previously before the Board, the issue of entitlement to service connection for residuals of a head injury, to include headaches, was remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the September 2013 remand the Board instructed the RO/AMC to obtain an addendum opinion regarding whether it is at least as likely as not that the Veteran's headaches are aggravated by his service-connected residuals of a comminuted left zygoma fracture with nerve involvement, and to address whether there are any other head or facial disorders which are residuals of the Veteran's in-service trauma. In October 2013 an addendum VA opinion was obtained. The VA examiner noted that the Veteran was involved in a car accident where he sustained a left zygomatic compound fracture requiring open reduction of the fracture in July 1968 in service. It was then noted that in August 2008 the Veteran was evaluated by neurology for chronic headaches of five to 10 years duration, in association with left facial pain. The Veteran reported that he was an unrestrained passenger and he hit the front seat of the car on impact. He indicated that his cheekbone was replaced with a fiberglass bone. He reported short lasting episodes of shooting pain in his left face, triggered by coldness and opening his mouth. The Veteran had a CT scan of the head that only showed atrophy without signs of any hardware. He described his headaches as bifrontal and sharp in terms of pain. The assessment was neuralgia and chronic daily headaches with history of facial trauma. He was started on Gabapentin in 2008. The examiner indicated that the last time the Veteran experienced headaches was in 2010. The examiner stated that the Veteran was last seen by neurology in 2008, and he was last seen in the pain clinic mainly for low back pain in January 2012; there was no mention of headaches. The examiner further stated that the Veteran was last seen by his primary care provider in November 2011, and there were no mention of headaches. The examiner opined that there are no other head or facial disorders which are residuals of the in-service trauma. The examiner indicated that the Veteran denied headaches or emergency room visits for headaches in over three to four years. The examiner further opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The examiner reasoned that in 2008 the Veteran was suffering from severe recurrent episodes of severe left temporal headaches that were triggered by light touch to the temporal area as well as touch by cold objects and changes in temperature. The neurologist's assessment of trigeminal neuralgia as the episodes disclosed a very typical presentation of that diagnosis. The examiner went on to state that the course of the symptoms improved and appear to have totally subsided by mid-2010 since there is no documentation of the Veteran suffering any more episodes of headaches since 2010. The examiner finally pointed to the Veteran not having mentioned headaches at an appointment on November 7, 2011. A review of the medical evidence reflects that in 2010 the Veteran reported having headaches. It was noted that the headaches were stable and that the Veteran was taking Tylenol and gabapentin for his headaches. A February 2011 VA treatment record reflects that the Veteran was still experiencing band headaches with occasional sharp shooting pain as well as intermittent jaw pain, all noted to be stable. An August 2011 VA treatment record reflects that the Veteran reported still having band headaches similar to those he has had in the past. A November 7, 2011 VA treatment record notes that the Veteran reported headaches. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Here, the opinion is based upon an inaccurate factual premise, and as such, the rationale in inadequate. Specifically, it is based in part upon the lack of any documentation of headaches since 2010. As noted above, this is incorrect and a remand is required for a medical opinion based upon an accurate review of the Veteran's documented medical history and one that includes a complete rationale which is based on the evidence of record. Additionally, the examiner opined that the Veteran's headaches clearly and unmistakably existed prior to service; as this was not the opinion requested, and as it does not represent the facts of this case accurately, a remand is also required in this regard. The Board also notes that the December 2008 VA examination report contains an opinion that the Veteran's head injury with headaches is not caused by or a result of left facial trauma. The examiner reasoned that traumatic brain injury occurs when a sudden trauma causes damage to the brain; it can result when the head suddenly and violently hits an object or when an object pierces the skull and enters the brain tissue. The examiner stated that Veteran experienced trauma to his left face that resulted in a left zygomatic fracture requiring surgical intervention. The examiner found that there is no documentation of brain injury; the Veteran did not lose consciousness, he did not experience amnesia, and there are no neurological deficits. The examiner opined that the Veteran's headaches appear to be related to his lack of sleep, as per the December 2, 2008 VA treatment record. Then, the examiner stated, "his lack of memory can be explained in the basis of ischemic the basis of minor chronic small vessel in the brain." Importantly, neither medical opinion report addresses the Veteran's contention that his headaches have been ongoing since the in-service accident. Based upon the above, the Board also finds that an opinion should also be obtained regarding whether the Veteran's headaches are etiologically related to the in-service accident or whether they are caused or aggravated by the service-connected left zygomatic fracture and another opinion should be obtained regarding the etiology of the Veteran's memory loss, as the opinion of the December 2008 VA examiner regarding memory loss is unclear. Accordingly, the case is REMANDED for the following action: 1. Obtain any pertinent and outstanding treatment records, to include records from the Miami VA Healthcare System (VA Medical Center Miami and Broward County VA Outpatient Clinic) dated since September 2013. 2. Thereafter, return the claims file, to include a copy of this remand, to the October 2013 VA examiner, in order to obtain an addendum opinion report. The claims file must be made available to the examiner and the examiner must indicate that the claims file has been reviewed. The examiner should provide an opinion as to whether the Veteran's currently diagnosed headaches are at least as likely as not (50 percent or better probability) etiologically related to the in-service car accident. The examiner should provide an opinion as to whether the Veteran's headaches are at least as likely as not (50 percent or better probability) caused or aggravated by his service-connected residuals of a comminuted left zygoma fracture with nerve involvement. The examiner should also provide an opinion as to whether the Veteran's memory loss (found at the December 2008 VA examination) is at least as likely as not (50 percent or better probability) etiologically related to the in-service car accident. The examiner should also provide an opinion as to whether the Veteran's memory loss (found at the December 2008 VA examination) is at least as likely as not (50 percent or better probability) caused or aggravated by his service-connected residuals of a comminuted left zygoma fracture with nerve involvement (or the headaches, should they be determined to be service-connected). The examiner must address the Veteran's report of ongoing headaches since the in-service car accident. The examiner must specifically note that the Veteran reported having headaches in February 2011, August 2011, and November 2011, according to VA treatment records. The examiner must also specifically note that the Veteran is taking Tylenol and gabapentin for his headaches. Aggravation is defined as worsening beyond the natural progression of the disease. A complete rationale for any opinion offered must be provided. If the October 2013 VA examiner is unavailable, another qualified examiner should be requested to provide the same opinions. If a new VA examination needs to be conducted in order to obtain the opinions, then one should be scheduled. All indicated tests and studies should be undertaken. Following a review of the relevant evidence in the claims folder and the clinical evaluation, the new examiner should answer the above questions. 3. When the development requested has been completed, readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).