Citation Nr: 1720640 Decision Date: 06/08/17 Archive Date: 06/21/17 DOCKET NO. 12-29 774 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Veteran represented by: John M. Dorle Attorney-At-Law WITNESSES AT HEARING ON APPEAL Veteran and C.N. Bash, M.D. ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2000 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO). In May 2015, the case was remanded to afford the Veteran a hearing. In October 2015, a videoconference hearing was held before the undersigned Veteran Law Judge (VLJ). A transcript of the hearing is associated with the record. In January 2016, the case was remanded to the RO for additional development and it was requested that the examiner address a C.N. Bash, M.D. opinion regarding the etiology of the Veteran's conditions. In February 22, 2016, the RO granted service connection for the Veteran's asthma condition. The Veteran did not appeal the February 2016 rating decision, therefore, the issue of entitlement to service connection for asthma is not before the Board at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran contends that her headaches started in 2002 when she was stationed at Barksdale Air Force Base working in a "hanger office." She describes her headaches as "all over her head" that proceed down her neck, and contends she experiences them everyday. The Veteran also contends she gets migraine-type headaches about twice a month. The Veteran characterized her headaches as prostrating attacks, with photo and phonophobia In addition, the Veteran attributes her headache to "pulling" her hair back too tight in a band or looking at her computer screen too long during her military service. In March 2013, C.N. Bash, M.D. opined, that based on her medical records, the Veteran's migraine headaches started in service. He concluded, "[t]he type of headaches they described during service time are most consistent with migraine." According to Dr. Bash, the Veteran's asthma symptoms, nasal septum deviation and her sinusitis, likely contributed to her headaches in service. Dr. Bash further opined, that it is to at least the 90 percent level of probability that her current migraine headaches problems are due to the experiences/trauma that the Veteran had during military service. In support of his conclusion, he stated, that the record shows she entered the service fit for duty without any doctor-diagnosed illness, that she complained of headaches to her husband during service, and according to him, the records do not support another more plausible etiology for her current migraine headaches pathology other than her service time asthma/sinusitis/rhinitis, and concluded, that the time lag between migraine headaches in service and her formal diagnosis of migraine is consistent with the literature. In VA Form 21-4138, Statement in Support of Claim, received on March 25, 2016, the Veteran requested that the RO grant service-connection for not only the diagnosed respiratory condition, but also the resultant prostrating headaches/migraines related to the respiratory condition on a causal and/or aggravated basis. Pursuant to the January 2016 Board remand, an addendum VA opinion was obtained to determine the current nature and likely etiology of any respiratory disorder (including asthma, rhinitis, sinusitis and/or bronchitis and/or headache disorder). The examiner opined that there is no objective evidence anywhere in the record that the Veteran's headaches have any relation to her service. In addition, the examiner reviewed Dr. Bash's report that the Veteran's headaches are related to service, provided a summary of that report, and opined, that Dr. Bash's conclusion that the Veteran's headaches are related to service is based entirely on lay statements and that the doctor did not present any rationale for his conclusion. The Board finds that the January 2016 VA migraines examination is inadequate for decision making purposes for the following reasons. First, the examiner's opinion does not reflect consideration of the Veteran's report that her headache condition is due to her service-connected asthma. Although the Veteran is not competent to medically attribute her condition to any particular cause, she is competent to report and/or describe her symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (2006). Second, while the examiner's opinion that it is less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness, the Board did not request, and the examiner did not opine whether the service-connected asthma caused or aggravated the Veteran's migraine headaches. As the January 2016 VA examination is inadequate for decision-making purposes, the case must be remanded for additional development. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Forward the record and a copy of this Remand to the examiner who provided the January 2016 VA opinion or, if that examiner is not available, to a similarly qualified VA clinician for preparation of an addendum opinion. The examiner must indicate that the record was reviewed. Further in-person examination of the Veteran is left to the discretion of the examiner. If the examiner determines that further in-person examination is necessary, then such an examination should be scheduled. The examiner is asked to provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's migraine headaches are caused or aggravated by the Veteran's service-connected asthma condition ? Aggravation is defined as a permanent worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability "is not caused by or a result of" another disability does not answer the question of aggravation and will necessitate a further opinion. See Allen v. Brown, 7 Vet. App. 439, 449 (1995); El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). A complete rationale for any opinion provided is requested. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports, to include the Veteran's contention that her headaches are aggravated due to "pulling" her hair too tight or looking at the computer screen too long, and the service-connected asthma, must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. 2. After completion of the above, review the expanded record, including the evidence entered since the most recent supplemental statement of the case, and determine whether service connection may be granted. If any benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL MARTIN 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) (2016).