Citation Nr: 20032487 Decision Date: 05/08/20 Archive Date: 05/08/20 DOCKET NO. 11-01 373 DATE: May 8, 2020 REMANDED Entitlement to service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1979 to October 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2004 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2013, the Board remanded the case in order to provide the Veteran with a statement of the case. After he perfected his appeal, the Board remanded the case for additional development in October 2015 and to afford him his requested Board hearing in August 2016. Thereafter, in May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. In August 2017, the Board again remanded the case for additional development and, in July 2018, denied service connection for migraine headaches. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion for Remand (JMR) that vacated and remanded the Board’s July 2018 decision. In December 2019, the Board again remanded the case for additional development and it now returns for further appellate review. 1. Entitlement to service connection for migraine headaches. As relevant, the December 2019 remand directed that an addendum opinion be obtained to ascertain the etiology of the Veteran’s migraine headaches. The need for an examination was left to the discretion of the clinician selected to render the opinion. Nonetheless, a February 12, 2020, entry in the file reflects that the Agency of Original Jurisdiction (AOJ) requested an examination and reported the Veteran’s address as located in Vista, California. A March 10, 2020, entry reflects that the AOJ was advised that the Veteran failed to report for his scheduled VA examination. Further, in the March 2020 supplemental statement of the case, the AOJ advised the Veteran that he had failed to report for his VA examination without good cause and, consequently, any evidence expected to be obtained as a result of such VA examination could not be considered. In subsequent March 2020 correspondence, the Veteran’s representative advised that the Veteran was chronically homeless and provided his last known address, which was located in Yuma, Arizona. He further indicated that the examination request included the aforementioned address in Vista, California, and, as there was no examination notification letter in the file, it was impossible to determine where it was sent or if the Veteran received it. Thus, the Veteran’s representative argued that good cause to reschedule the examination had been demonstrated and further requested that such be conducted in Arizona with notice to both him and the Veteran. Therefore, as the examination request included an old address and there is no examination notification letter in the file, the Board finds that it is unclear whether the Veteran was properly notified of the scheduled examination. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (reversing Kyhn v. Shinseki, 23 Vet. App. 335 (2010) which involved the presumption of regularity in notification of VA examinations.) Additionally, in light of the Veteran’s representative’s argument, the Board finds that the Veteran has presented good cause for his failure to attend the scheduled VA examination. Consequently, the Board finds that a remand is necessary in order to obtain an addendum opinion addressing the etiology of the Veteran’s migraine headaches. If the clinician selected to offer the opinion determines that an examination is necessary, and the Veteran fails to report for it, a copy of the notification letter advising him and his representative of the time, date, and location of the scheduled examination sent to his address in Yuma, Arizona, must be included in the file. Further, he is herein advised that it is his responsibility to report for the examination and the consequence of failing to do so without good cause may include the denial of the claim. The matter is REMANDED for the following action: 1. Forward the record to an appropriate medical professional, other than the December 2015/March 2018 VA examiner, if possible, as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. If the clinician determines that such examination is necessary, notification of it should be sent to the Veteran at his address in Yuma, Arizona, and his representative. If he fails to report for it, a copy of the notification letter advising them of the time, date, and location of the scheduled examination must be included in the file. Following a review of the record, the examiner should offer an opinion as whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s migraine headaches: (1) had their onset during service; (2) manifested within one year of his separation from service (and if so, the manifestations should be described); or (3) is otherwise related to service, to include the Veteran’s report of overuse of over-the-counter pain medication during service, exposure to loud noises and sleep pattern interruption while in service, and/or any potential exposure to radiation coincident with his service aboard the nuclear-powered aircraft carrier, the USS Enterprise, from January 1980 to June 1980. The examiner should also consider the Veteran’s representative’s argument that the Veteran does not have a genetic pre-disposition to migraine headaches as he has not been shown to have such gene and he has not been diagnosed with not such type of migraines. The examiner should also review and consider the treatise evidence submitted by the Veteran’s representative in September 2019. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Allison Payne 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.