Citation Nr: 20048049 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 14-32 223 DATE: July 17, 2020 REMANDED Entitlement to service connection for a headache condition, to include as secondary to service-connected insomnia and tinnitus, is remanded. REASONS FOR REMAND The Veteran served in the Army from August 2000 to October 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board remanded the matter for an examination to address the Veteran’s contentions that his headache condition is secondary to his service-connected insomnia and tinnitus. This examination was conducted in April 2019. Entitlement to service connection for a headache condition, to include as secondary to service-connected insomnia and tinnitus, is remanded. The Veteran seeks service connection for a headache condition. The Board finds that another VA examination is necessary before deciding this claim. Initially, the Board notes that the April 2019 examiner determined that the Veteran does not have a diagnosed headache condition, rationalizing that “the diagnosis of any headache syndrome is based on a reliable and recorded history of headache[s], which is not present in this case.” The Board observes that the Veteran has admittedly never sought treatment for his headaches, but has sought over-the-counter pain medication to address his symptoms. However, the examiner also stated that the Veteran’s reported symptoms—four to five headaches a week, lasting an hour—indicate he has chronic tension type headaches. The Board understands this to be a diagnosed headache condition. The Board’s understanding is supported by a May 2014 examination conducted by the same examiner in which it is noted that the Veteran does have a diagnosed headache condition. Nonetheless, the Board finds that the Veteran’s April 2019 examination is inadequate for two reasons: (1) the examiner determined that the Veteran’s headaches were genetic in nature without making the finding required in this case that the Veteran’s headaches clearly and unmistakably pre-existed service and (2) the examiner provided the same rationale for whether the Veteran’s headaches were caused or aggravated by his service-connected tinnitus. First, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 C.F.R. § 3.304(b); see 38 U.S.C. §§ 1111, 1132. Only such conditions as are recorded in examination reports are to be considered as noted. Id. Here, the Veteran’s entrance examination does not note headaches or migraines. Therefore, the Veteran must be considered sound upon entrance and without such a condition prior to service. For the examiner to have relied on the conclusion that the Veteran’s headaches are genetic in nature, the examiner would have had to make the finding that the Veteran’s headaches clearly and unmistakably pre-existed service. Although informative, without such a finding, the examiner’s rationale is inadequate. Second, causation and aggravation are independent concepts and should have separate findings and rationales.  See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). In Atencio, the United States Court of Appeals for Veterans Claims explained that reliance on a medical opinion which provides no distinction between causation and aggravation is improper. Id. at 90. Here, for both causation and aggravation, the examiner stated that “no current studies [] show a direct cause and effect relationship between insomnia or tinnitus causing or aggravating chronic tension type headache[s] beyond the[ir] normal progression.” Moreover, the preceding paragraphs explaining the diagnosis of chronic tension type headaches and their contributing factors appear to only address the causation prong of secondary service connection. The examination report lacks a reasoned medical explanation as to aggravation. Such that the above statement is intended to be the explanation as to aggravation, the Board notes that a medical opinion is not entitled to any weight in a service-connection or rating context if it contains only data and conclusions, as it does here. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (citing Stefl v. Nicholson, 21 Vet. App. 120, 125). As such, a remand is warranted to obtain an adequate opinion on whether the Veteran’s headache condition is caused or aggravated by his insomnia and tinnitus. Lastly, the Board notes that the Veteran has not been provided an opinion on whether his headache condition is directly related to service. The examiner stopped short of providing an opinion on direct service connection in May 2014. Considering that the Veteran’s entrance examination does not note headaches and that he has reported their onset as occurring during service, the Veteran must be provided an opinion on whether his headaches are directly related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994) (supporting that Veteran are competent to attest to observable symptomatology, such as pain). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s headache condition. The examiner must be provided access to the claims file and a copy of this remand and must indicate a review of such in the examination report. The examiner must obtain a full history from the Veteran regarding the onset of his headache symptoms. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomatology, such as pain. The examiner should first offer an opinion as to whether the Veteran’s headache condition clearly and unmistakably (undebatable) pre-existed service. In rendering this opinion, the examiner must discuss the Veteran’s entrance examination that supports the Veteran did not suffer from headaches at entrance to service. If the examiner determines that the Veteran’s headache condition pre-existed his military service, determine whether it is a congenital defect or disease. (a) If it is a defect, is it at least as likely as not (50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in an additional headache condition; or (b) if it is a disease, is there clear and unmistakable evidence that it was not aggravated (increased in severity beyond the natural progression of the disease) in service, resulting in the current headache condition. If it is the examiner’s opinion that there is no clear and unmistakable evidence that the Veteran’s headache condition pre-existed service or that there is no clear and unmistakable evidence that the Veteran’s headache condition was not aggravated by service, the Veteran is presumed sound at entrance. The question then becomes one of direct service connection. In this case: The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s headache condition had its clinical onset during service or is otherwise etiologically related to service. If it is the examiner’s opinion that the Veteran’s headache condition is not directly related to service, the question then becomes one of secondary service connection. In this case: The examiner is asked to opine whether the Veteran’s headache condition is at least as likely as not (50 percent or greater probability) proximately due to or aggravated by the Veteran’s service-connected insomnia and/or tinnitus. Causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, the examiner must provide separate findings and rationales relating to causation and aggravation. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be “permanent” worsening of the nonservice connected disability. A complete rationale for any opinion must be provided.    (Continued on the next page)   A complete rationale is one that contains not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. 2. Then, readjudicate the Veteran’s claim on appeal. If the benefit sought on appeal remains denied, provide the Veteran an additional supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante 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.