Citation Nr: 20006901 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 08-04 954 DATE: January 28, 2020 ORDER Entitlement to service connection for a headache disorder is granted. REMANDED Entitlement to service connection for a heart disorder is remanded. FINDINGS OF FACT 1. The evidence does not show that the Veteran’s preexisting tension headaches disability was clearly and unmistakably not aggravated by active duty. Evidence of aggravation of the Veteran’s tension headaches during active duty has been shown. 2. Thus, the Veteran’s tension headaches were incurred in service. CONCLUSION OF LAW The criteria are met for entitlement to service connection for a headache disorder, identified as tension headaches. 38 U.S.C. §§ 1101, 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1970 to October 1970. In September 2017, the Board remanded the case to the AOJ for additional development and consideration. The Board incorporates by reference the procedural history discussed in the September 2017 Board remand. The file is again before the Board for further appellate review. Entitlement to service connection for a headache disorder The Veteran asserted that he had headaches since he went on active duty and had them the whole time he was in the Army. See March 2007 Veteran’s statement. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second aggravation prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). The government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any ‘increase in disability [was] due to the natural progress of the’ preexisting condition.” Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof remains with the government and must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn, 25 Vet. App. at 236-37. The Veteran need never produce any evidence of aggravation to prevail under the aggravation prong, even if clear and unmistakable evidence establishes that the disease preexisted service. In other words, in a situation such as here, where a condition is not noted at entrance, the burden is never shifted back to the Veteran to show that his disability increased in severity during service. Id. If the government rebuts the presumption of soundness, then the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111 by showing any of the above, the Veteran’s claim is one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. Initially, the Board observes the March 2012 VA examiner diagnosed a current disability of tension headaches and post-service VA treatment records also reflect diagnosis and prescription medication for tension headaches. At the Veteran’s August 1969 entrance examination, there are no complaints, reported history or diagnoses indicating a headache disability. Thus, a headache disability was not noted on entrance examination. However, there is clear and unmistakable evidence showing that the Veteran’s headaches preexisted his period of active duty from January to October 1970. In this regard, the Veteran began seeking treatment within days of entry to active duty, during late January to early February 1970, which were soon diagnosed on neurological consultation as tension headaches due to a reported head injury playing football prior to entry, in approximately November-December 1969. Moreover, the March 2012, June 2018 and May 2019 VA examiners all found that the Veteran’s headache disorder clearly and unmistakably existed prior to service. The next inquiry to be addressed is whether clear and unmistakable evidence exists to show that the preexisting headaches disability was not aggravated during service, to fully rebut the presumption of soundness. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Although several VA examiners, in March 2012, June 2018 and May 2019 opined that the Veteran’s headache disorder was clearly and unmistakably not aggravated by service, the Board does not find these opinions to be adequate in this regard. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As indicated in the September 2017 Board remand, the Board continues to find the March 2012 VA examiner’s opinion to be inadequate, particularly for not addressing whether the severity of his headaches increased during service. Further, on remand, the June 2018 VA examiner found that “[t]he documentation of the Veteran’s headaches did not indicate an increase in frequency or severity. It was the veteran’s claim from the first complaint that the headaches occurred daily and that did not change.” This finding was repeated by the May 2019 VA examiner. The 2018 and 2019 VA examiners’ opinions did not provide discussion or citations to any particular dates of in-service treatment, and did not explain why the headaches did not increase in frequency or severity during service. A well-reasoned explanation is needed to reconcile these findings with the Veteran’s numerous documented instances of in-service complaints and treatment for headaches. As such, the opinions are of no probative value when addressing whether the headaches disability was clearly and unmistakably not aggravated by service. As such, what remains are the Veteran’s service treatment records. Upon review of the service treatment records, the Board finds that the evidence does not clearly and unmistakably show that the Veteran’s tension headaches disability was not aggravated by active duty. Rather, the service treatment records show evidence of in-service aggravation of the Veteran’s preexisting tension headaches during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The presumption of soundness has not been rebutted. The evidence shows entrance examination was noted to be normal, particularly on clinical evaluation. On January 30, 1970 (3 days after entrance), the Veteran initially complained of headaches, recorded by the clinician as migraine headaches that started 1 month before, and he continued to have headaches, although the history of the headaches was observed to be atypical. The next day, on January 31, 1971, the Veteran complained of severe headaches, and was diagnosed with a headache, etiology unknown. On February 1, 1970, he received emergency treatment for a tension headache. On February 4, 1970, the Veteran was referred for a Neurology consult, which recorded that about 6 weeks ago, the Veteran banged the back of his head while playing football, he had no treatment, and since then he had intermittent headaches lasting 1-3 hours in duration, and he was diagnosed with tension headaches. The Veteran is next shown to seek treatment for his headaches from the dispensary on July 9, 1970. On July 15, 1970, he sought treatment from the General Medical Clinic, where he complained of headaches that had apparently been evaluated many times in the past and began after being knocked unconscious 8 months ago in football game; and he was diagnosed with headaches from past trauma. A record on July 21, 1970 ruled out post-traumatic headaches. Another record on July 21, 1970 shows that he was referred to Neurology for a long history of tension headaches, of unknown etiology. On Neurology consult on July 24, 1970, the record indicates that the Veteran sustained a head injury playing football in November with loss of consciousness, providing an impression of muscle contraction headache, and ruled out “occipital neuralgia.” On July 27, 1970, he was treated for headaches. On July 28, 1970, he was treated for and diagnosed with tension headaches. A record on July 29, 1970 shows he was treated for and diagnosed with tension headaches. Another record on July 29, 1970 shows the Veteran was referred again to Neurology for a determination of his fitness for duty. The consultation request indicated that he was sent back to emergency treatment from his unit later that day for sleeping on duty and unable to pull detail “because of his headaches.” The July 29, 1970 Neurology consult observed the Veteran had been evaluated numerous times and been seen in emergency treatment for 3 days straight, such that he had been unable to perform his duties and continually complained of headaches. Subsequently, the service treatment records show a September 1970 private physician’s letter that indicates he saw the Veteran in August 1970 for mental health problems, which included an ambulance trip for a “fugue” episode, diagnosed him with aggressive personality defect, and indicated the Veteran’s headaches were of a psychogenic nature. However, there is no other reference to psychogenic headaches in his service records. Later that month, at his September 1970 Hardship Discharge examination, the examiner did not diagnose any headache disorder. Nonetheless, the Veteran did report a history of frequent or severe headaches, and he also reported, “I had a back injury the same day that I hurt my head.” Following his separation examination, the Veteran submitted an October 1970 “Statement of Medical Condition,” that stated, “My headache gotten wors[e].” As such, the Board finds that the competent, credible, and probative evidence establishes that the Veteran’s current tension headaches disability are related to service. Horn, 25 Vet. App. at 236-37. See also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Accordingly, resolving doubt in the Veteran’s favor, the evidence supports service connection for tension headaches. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a heart disorder The Board’s September 2017 remand requested a VA examination and medical opinion on the nature and etiology of the Veteran’s claimed heart disorder. The Board’s directive on the heart opinion provided several distinct questions for a VA examiner to answer. However, on remand, the May 2019 VA examiner abbreviated and combined these questions so that it is not entirely clear if the examiner’s opinion reflects the opinion as actually requested by the Board. Likewise, the May 2019 VA examiner’s opinion does not contain an explanation of applicable medical principles or discussion of rationale for any medical findings involved. Compliance with the Board’s 2017 remand directives has not been accomplished. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Board must remand the heart claim again to ensure compliance with the directives set forth in the September 2017 remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA heart examination to determine the nature and etiology of any current heart disorder(s) (present at any time since September 2006) related to his claim for service connection, with an appropriate VA clinician, different from the March 2012 and May 2019 VA heart examiners. The VA examiner should be provided with access to the Veteran’s virtual claims file and should review it in conjunction with the examination. Any necessary diagnostic tests and/or studies should be conducted to determine what, if any current heart disorder(s) the Veteran has presently. After diagnosing the Veteran’s current heart disorder(s)—any heart disability present since September 2006—found on examination, the VA examiner should be asked to answer the following: (a) Even if a heart murmur is not currently diagnosed, is it at least as likely as not (at least a 50 percent probability) that the Veteran’s pre-existing heart murmur noted at the Induction examination in August 1969 and again on entry in January 1970 was aggravated (i.e., any increase in severity) during his active military service from January to October of 1970? In determining aggravation, the examiner should consider and discuss whether the Veteran’s reported history at his separation examination in September 1970 of having a history of pain or pressure in the chest and/or shortness of breath was an indication of a worsening of the Veteran’s heart murmur. If there was aggravation of the Veteran’s heart disorder during active service, the VA examiner should then provide an opinion as to whether there is clear and unmistakable evidence that such worsening was due to the natural progression of the heart murmur. (b) If there is no current diagnosis of a heart murmur, the examiner should provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that any currently diagnosed (present at any time since September 2006) heart disorder is an evolution of or related to the previously diagnosed heart murmur? (c) As for any currently diagnosed heart disorder, is it at least as likely as not (at least a 50 percent probability) that any current heart disorder (present at any time since September 2006) is related to any event, injury or disease incurred during his active military service? As set forth in the Board’s 2017 remand, hypertension and Microvascular Heart disease must be addressed. In rendering an opinion, the VA examiner should consider and discuss as necessary the Veteran’s report at his separation examination in September 1970 of having a history of pain or pressure in the chest and/or shortness of breath or any other evidence of such in the service treatment records and the post-service medical evidence showing complaints of chest pain and shortness of breath. The examiner should provide a complete explanation for all opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made.   A complete rationale should be provided for all opinions rendered. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, Counsel 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.