Citation Nr: 1806037 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-28 322A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran served on active duty from June 1975 to December 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Atlanta, Georgia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an October 2017 Board videoconference hearing before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. At the videoconference hearing, the Veteran sought, and was granted, a 30-day abeyance period for the submission of additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review. 38 C.F.R. §§ 20.709, 20.1304 (2017). In November 2017, the Veteran submitted additional evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Veteran is seeking to establish service connection for migraine headaches. The Board finds that the evidence currently of record is insufficient to decide this claim and remand is warranted for a new medical opinion. The Veteran contends that the headaches that he experienced prior to service worsened and became more frequent in service, in part because of his exposure to noise from jets and generators. Review of his service treatment records shows that at his pre-induction examination in December 1974, the Veteran reported a history of frequent or severe headache. No current headache was noted on examination. The remaining service treatment records note numerous headache complaints, including the October 1980 separation physical that noted a history of headaches since age 11 and current headaches occurring 25 times per year and treated with Cafergot. During the October 2017 Board hearing, the Veteran stated that during service he "was re-assigned" to a different duty specialty because of his headaches, particularly because he could not get clearance to carry a weapon. Veterans are presumed sound upon entry into service except for conditions noted upon entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such disorders as are recorded in examination reports are considered as noted. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304 (b) (2017). When no pre-existing condition is noted upon entry into service, a veteran is presumed sound. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004). The Secretary must rebut the presumption of soundness with "clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012) (emphasis added). History of pre-service existence of disorders recorded at the time of examination does not constitute a notation of such disorders but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1) (2017). The Veteran underwent a VA examination in March 2012; however, the Board finds that the opinion provided is inadequate. The examiner opined that the Veteran's headache disability was less likely than not incurred in or caused by service (a direct incurrence opinion) but then reasoned, "there is no research which supports that noise worsens headaches beyond its natural progression" (an aggravation opinion). Moreover, the examiner did not provide reasoned medical explanations with discussion of supporting medical evidence. While it is true that a medical opinion need not "explicitly lay out the examiner's journey from the facts to a conclusion," the reasoning of the examiner must still be discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). On remand, a new medical opinion should be obtained. Prior to this, outstanding service personnel records and post-service treatment should be associated with the claims file. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Attempt to obtain all available service personnel records for the Veteran's service through official channels. In particular, attempt to obtain any record of the Veteran's duty assignments If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Obtain all pertinent VA records not already associated with the claims file since November 2017. 3. Thereafter, provide the claims file to a VA examiner, and obtain from that examiner a medical opinion. If the examiner determines that an opinion may not be offered without first examining the Veteran, then schedule the Veteran for an appropriate examination. The examiner is requested to provide the following information: (a) Did any current headache disability clearly and unmistakably pre-exist the Veteran's entry to military service in June 1975? If the examiner finds that a headache disorder pre-existed service, he/she should identify the disorder and the evidence supporting pre-existence. (b) If a pre-existing headache disorder is found, is there clear and unmistakable (undebatable) evidence that such pre-existing headache disorder did not undergo an increase in the underlying pathology, i.e., was not aggravated beyond its natural progression, during service? The examiner should point to the specific clear and unmistakable evidence relied upon for the finding that the headache disorder was not permanently aggravated by service. (c) If no pre-existing headache disability is found, is it at least as likely as not (50 percent or greater probability) that any current headache disability is of service onset or otherwise related to his period of military service? In offering any opinion, the examiner must consider the full record, to include the lay statements (including the Veteran's statements and hearing testimony) and medical reports reflecting the history provided by the Veteran regarding in-service aggravation and symptomology prior to, during and after service. A clear rationale for any opinion offered should be provided. Where possible, reasoned medical explanations connecting conclusions with supporting data are specifically requested. If the 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. 4. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 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. §§ 5109B, 7112 (2012). _________________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).