Citation Nr: 20043319 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 17-33 562 DATE: June 26, 2020 REMANDED Entitlement to service connection for a neuropathological disability of the left lower extremity is remanded. Entitlement to service connection for residuals of a head injury, to include migraine headaches, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1945 to August 1946 and from November 1948 to September 1952. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Board remanded the matter to obtain the Veteran’s service treatment records (STRs) and Social Security Administration (SSA) records. In October 2019, the Board noted that the Veteran’s STRs and SSA records could not be located and that VA determined that further efforts to obtain these records would be futile. The Board remanded the matter to obtain VA examinations. Based on the evidence of record, the Board finds it appropriate to recharacterize the Veteran’s claim for service connection for a head injury as a claim for residuals of a head injury, to include migraine headaches. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the matter previously included the claims for service connection for a back disability and a neuropathological disability of the right lower extremity. However, the Agency of Original Jurisdiction (AOJ) granted service connection for a back disability and neuropathological disability of the right lower extremity in a February 2020 rating decision. Thus, as this represents a full grant of the benefit that was sought with respect to these issues, the matters are no longer in appellate status and will not be further addressed. Neuropathological Disability of the Left Lower Extremity The Board notes that the Veteran’s VA and private treatment records are silent as to any neuropathological disability of the left lower extremity. Pursuant to the Board’s October 2019 remand directives, the Veteran was afforded a VA examination in November 2019 and January 2020. The November 2019 VA examiner noted that the Veteran had bilateral lower extremity radiculopathy associated with a back condition. The examiner further noted that the condition would not be further addressed as the examination was focused on whether the Veteran had a central nervous system condition. The January 2020 VA examiner diagnosed the Veteran with moderate right lower extremity sciatic nerve radiculopathy. He indicated that the Veteran’s left lower extremity was not affected. Considering the conflicting evidence regarding whether the Veteran has a neuropathological disability of the left lower extremity, the Board finds that remand is necessary before the Board can adjudicate the claim. Residuals of a Head Injury The Veteran contends that he sustained a head injury during service. Specifically, he contends that while stationed in Norfolk, Virginia he was thrown from a truck that was hit by a locomotive and landed on his head. He asserts that he was sent to a “make-shift” infirmary instead of a hospital after the incident. The Veteran underwent a VA examination in November 2019, in which he was diagnosed with migraine headaches. The Veteran reported that his headaches began after the in-service incident and that his condition has remained the same since onset. The examiner noted that the Veteran’s records showed no evidence of a head condition. The examiner opined that the Veteran’s head condition was less likely than not incurred in or caused by the claimed in-service event as there was no evidence of a head condition during service. A January 2020 VA examiner opined that the Veteran did not have or ever had a traumatic brain injury (TBI) or any residuals of a TBI. The examiner indicated that the Veteran reported occasional headaches but denied any symptoms of migraine type headaches. The Board finds that remand is required for an addendum VA medical opinion. Here, the November 2019 and January 2020 VA examinations contradict each other as to whether the Veteran has a diagnosis for migraine headaches. Additionally, the Board finds that the November 2019 VA medical opinion is inadequate as the opinion is largely based on the absence of a diagnosis in service and failed to consider the Veteran’s lay statements of record. Dalton v. Nicholson, 21 Vet. App. 23, 39–40 (2007) (a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history or if it is based solely on the absence of documentation in the record). Moreover, the Board notes the Veteran’s back disability was granted on the basis of a January 2020 VA medical opinion, which found that the condition was directly related to the Veteran’s in-service traumatic event of being thrown from a truck that was hit by a locomotive. Therefore, the Board finds that the AOJ has conceded the Veteran’s reported in-service incident. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate medical professional. All diagnostic testing and evaluation should be performed, and all findings set forth in detail. Following a review of the claims file, the examiner is asked to address the following: a) Whether the Veteran has a current neuropathological disability of the left lower extremity; b) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s neurological disability of the left lower extremity is etiologically related to service; c) Whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s neurological disability of the left lower extremity is proximately due to or aggravated by his service-connected back disability. “Aggravated” means to cause any increase in severity that is beyond the normal progression of the disability. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 3. After completing directive #1, forward the claims file to a qualified medical professional to obtain a VA medical opinion regarding the nature and etiology of the Veteran’s residuals of a head injury. If the examiner determines that another VA examination is necessary, such an examination should be scheduled. Following a review of the record, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s residuals of a head injury, to include migraine headaches, manifested in or are otherwise etiologically related to service, to include conceded in-service incident in which he was thrown from a truck. In rendering the requested opinion, the examiner should consider and address the Veteran’s lay statements regarding onset and continuity of symptoms. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate 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.