Citation Nr: 20047784 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 14-11 945 DATE: July 16, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for migraine headaches is denied. REMANDED Entitlement to service connection for a back disability is remanded. FINDING OF FACT The Veteran’s migraine headaches are not productive of characteristic prostrating attacks occurring on an average of once a month over the last several months. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for migraine headaches have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active naval service from April 1984 to March 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board in December 2017. A transcript of the hearing has been associated with the claims file. This case was previously before the Board in April 2018, at which time the issues currently before the Board were remanded for additional development. The case has now been returned to the Board for further appellate action. Increased Rating – Migraine Headaches The Veteran asserts that the symptoms of her migraine headaches are worse than those contemplated by the currently assigned rating. At a January 2011 VA examination, the Veteran reported that she had continued to experience migraine headaches since service. She reported that she has been placed on a preventative regiment, and that she was only experiencing one breakthrough headache per month. She reported that she was taking Fioricet for treatment of her migraines. She reported that in the prior 12-month period, she had been experiencing one headache per month, less than half of which were prostrating. She reported that her headaches would typically last for several hours at a time. The examiner noted that the Veteran’s headaches would not have an impact on the Veteran’s ability to work, or her ability to perform activities of daily living. At a September 2019 VA examination, the Veteran reported that she continued to experience migraine headaches. She reported that she was followed by a private provider for her headaches, and that she was maintained on two medications that helped reduce her headaches. She reported that she thought they would be worse without her medication. She reported that on occasion, she would leave work if her headache did not go away with medication. The Veteran reported that she was taking Fioricet, Amiovig, and Botox injections for treatment of her migraines. The Veteran reported that when she experienced a headache, they were pulsating or throbbing in nature, and were frontal centered or low rear in position. She reported that during a headache, she experienced sensitivity to light and sound. She reported that her headaches lasted from 6-8 hours to two days at a time. The examiner noted that the Veteran experienced one prostrating headache every two months. The examiner noted that the Veteran did not experience very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and from private treatment providers for various disabilities, to include her migraine headaches. A review of the treatment records does not show that the Veteran has migraine headache symptoms that are worse than those reported in the various VA examination reports of record. The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for migraine headaches. In this regard, there is no indication from the record that the Veteran experiences characteristic prostrating headaches that occurred on average, once a month over the last several months. While the May 2019 VA examiner did note that the Veteran experienced characteristic prostrating headache pain, the examiner noted that the pain occurred on average less than once every two months. Further, while the Veteran has reported that she occasionally has to leave work when her migraine pain did not respond to medication, there is no indication from the record that such events happen on a regular basis. Therefore, the Board finds that an initial rating higher than 10 percent is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2019). Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an increased rating for migraines is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional development is warranted before the remaining claim on appeal is decided. Service Connection – Back Disability In the April 2018 remand, the Board directed that the Veteran be afforded a VA examination to determine the nature and etiology of any currently present back disability. a review of the record shows that the Veteran was afforded the directed VA examination in July 2019. However, the opinion provided by that examiner is not adequate. In this regard, the examiner failed to consider the lay statements of record regarding the onset and continuity of the Veteran’s symptoms. further, the examiner relied on the absence of medical documentation of symptoms since service, despite the Veteran’s report of continued pain. Lastly, the examiner cited to a January 2000 workplace injury where the Veteran fell when walking down some stairs and injured her shoulder. The examiner noted that the Veteran did not report back pain at that time; however, it is clear from the treatment note that the Veteran was discussing the injury to her shoulder that she actually sustained in the fall and it does not appear that she was asked about other ongoing medical complaints at that time. As such, a lack of documentation of back pain at that time is not a sufficient rationale for the negative medical opinion provided. Therefore, the Board finds that the development conducted does not adequately comply with the April 2018 Board remand directives. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Additionally, current treatment records should be identified and obtained before a decision is made regarding the Veteran’s back disability. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner who has not previously examined the Veteran or provided an opinion in the appeal, to determine the nature and etiology of any currently present back disability. The claims file must be made available to, and reviewed by the examiner. Any indicated tests and studies must be performed. Based on the examination results and review of the record, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present back disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must consider the lay statements of record regarding the Veteran’s onset and continuity of her symptoms. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. (Continued on the next page)   4. Then, readjudicate the remaining issue on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Umez-Eronini, 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.