Citation Nr: 20052968 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-35 640A DATE: August 10, 2020 REMANDED Entitlement to service connection for headaches, to include as secondary to service-connected anxiety disorder with features of posttraumatic stress disorder (PTSD) and obsessive-compulsive disorder (OCD), and/or as secondary to service-connected traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1988 to June 1991, and from March 1993 to October 1996, to include service in Southwest Asia. He also had service in the Army National Guard. His decorations include the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. This case was previously before the Board in November 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. In its remand, the Board instructed the AOJ to obtain updated VA treatment and Social Security Administration (SSA) records, and to send the Veteran a letter asking him to identify his National Guard unit and dates of service so that it could assist him in obtaining National Guard service treatment records (STRs). It also instructed the AOJ to obtain an opinion regarding whether the Veteran’s headaches were aggravated by his service-connected disabilities. The AOJ obtained updated VA treatment and SSA records, and in February 2019 it sent the Veteran the letter contemplated in the November 2018 remand. While the Veteran provided a release of information to the AOJ that same month, he did not identify his National Guard unit or dates of service in the National Guard. In this regard, the Veteran is reminded that VA’s duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a Veteran wishes help, he cannot passively wait for it in circumstances where he may or should have information that is essential to the outcome of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193, recon. denied, 1 Vet. App. 406 (1991) (per curiam). If he is to have a reasonable opportunity to prevail on his claim, he must respond with specificity to VA’s requests for additional information. Otherwise, his claim may be denied. Despite the Veteran’s’ failure to provide the requested information, the November 2018 remand indicates that the reason development was ordered for National Guard STRs was because the Veteran reported the onset of headaches following a March 1994 motor vehicle accident (MVA), and the Board found that National Guard STRs might substantiate his contention. The Board notes that records of the March 1994 MVA and the subsequent treatment the Veteran received as a result are present in the claims file. While the Board finds that the AOJ substantially complied with the records development ordered in its November 2018 remand, it also finds that it did not substantially comply with the remand instructions regarding obtaining a VA medical opinion. As such, another remand is required. Finally, the Board notes that in a June 2020 rating decision, the AOJ granted the Veteran’s claim for a total disability rating based on individual unemployability due to service-connected disability, effective April 8, 2014 (when he reported having last worked full time in a substantially gainful occupation). As the maximum available benefit has been granted as to that issue, it is no longer on appeal. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201; Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Entitlement to service connection for headaches, to include as secondary to service-connected anxiety disorder with features of PTSD and OCD, and/or as secondary to service-connected TBI, is remanded. The Veteran contends that his headaches were incurred in or caused by service. He also contends that they are secondary to his service-connected psychiatric disorder and/or TBI. In its November 2018 remand, the Board directed the AOJ to obtain a VA medical opinion regarding the Veteran’s claim. It instructed the examiner, in part, to expressly consider an August 2011 VA TBI nexus opinion, an August 2011 VA psychiatric examination, and October 2012 VA TBI clinic note, a December 2013 VA neurological consult, and an August 2015 VA TBI examination. It further instructed the examiner specifically to provide a nexus opinion as to whether the Veteran’s headaches were aggravated by his service-connected psychiatric disability and/or TBI. The AOJ obtained an opinion from a VA examiner in March 2019. The examiner stated that she expressly reviewed the record and the conflicting evidence noted in the Board’s November 2018 remand, and offered unfavorable nexus opinions. She stated that review of the Veteran’s STRs documented the March 1994 MVA, and that STRs up to the time he separated from service in 1996 were negative for a diagnosis or treatment of headaches. She noted that records revealed complaints of headaches in April 2009 and that it was felt they were most likely due to high blood pressure that day, and that the next complaint of headaches was in February 2011, which were thought to be sinus related after heavy lifting. She noted that a CT (computed tomography) of the head at that time showed no abnormalities. The examiner also referred to a March 2011 TBI consult in which the Veteran reported his headaches started in September, months after his head injury and that since 2006 they became more severe. She emphasized that the headaches were reported in the TBI evaluation in 2011 as starting 6 months after the injury, that STRs were negative for treatment or diagnosis of headaches up to 2 years after the MVA, and that they were not documented until 2006. She also cited to the December 2013 neurology consult and noted that while post-concussive headaches were considered as a possibility, the Veteran fit the criteria for migraine at that time. She stated that per Uptodate medical literature, posttraumatic headaches should be within 7 days to 3 months after the injury, and that it was therefore less likely than not for the Veteran’s headaches to be due to, caused, or aggravated by his service-connected TBI. Finally, the examiner stated that per a May 2011 excerpt noted in the Initial PTSD VA examination, the Veteran reported that he became irritated and angry when he had a headache, and that it was the headaches that aggravated the psychiatric disorder, and not the other way around. She opined that there was no physiologic relation of psychiatric disorders and headaches, and that it was therefore less likely than not that the Veteran’s headaches were due to or aggravated by his service-connected psychiatric condition. The Board finds that the March 2019 VA opinion does not fully comply with the Board’s November 2018 remand instructions. First, the examiner did not consider and address each piece of evidence cited by the Board in its remand. The examiner addressed the 2011 TBI evaluation, the 2011 VA psychiatric evaluation, and the 2013 neurology consult, but she did not address the October 2012 TBI clinic note or the August 2015 VA TBI evaluation. Second, while the examiner provided a rationale regarding her opinion that the Veteran’s headaches were not caused by the Veteran’s service-connected TBI, she did not provide any rationale regarding her opinion that they were not aggravated by his TBI. Under the circumstances, the Board will seek an addendum opinion. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. Arrange to provide the record on appeal to an appropriate VA clinician for the purpose of obtaining opinions as to the etiology of the Veteran’s headaches. After reviewing the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran’s headaches had their onset in, or are otherwise related to, service. The examiner should also provide an opinion as to whether the Veterans’ headaches are secondary to, that is, caused or aggravated by, his service-connected psychiatric disability and/or TBI. In so doing, the examiner must expressly consider and discuss conflicting medical evidence regarding whether the Veteran’s headaches may be a symptom of or otherwise related to his service-connected TBI and/or psychiatric disorder. With respect to the relationship between the Veteran’s headaches and his TBI, the examiner must consider and discuss the following evidence: a) An August 2011 VA TBI nexus opinion (in support of favorable opinion, examiner’s rationale was history of 1994 MVA and ‘chronic headaches’); b) An August 2011 VA psychiatric examination (regarding Axis III medical diagnoses, finding that there is some indication that the Veteran’s chronic headaches may be associated with TBI); c) An October 2012 VA TBI clinic note (one of multiple VA outpatient notes documenting ongoing complaints and treatment of headaches in the context of specialized TBI treatment); d) A December 2013 VA neurological consult (finding he fits the criteria for migraines, though this doesn’t rule out the possibility of post-concussive headaches); but see, e.g., a March 2011 VA TBI clinic note (finding headaches unlikely related to history of TBI given onset of symptoms); and e) An August 2015 VA TBI examination (noting that per TBI evaluation, Veteran’s headaches are not related to TBI, given onset of symptoms; finding Veteran did not have any subjective symptoms or any mental, physical, or neurological conditions/residuals attributable to TBI, such as migraine headaches). With respect to the relationship between the Veteran’s headaches and his psychiatric disability, the examiner must consider and discuss the following evidence: a) A March 2011 VA TBI clinic note (noting Veteran’s complaints of anxiety, stress, and severe headaches; physician stated headaches would be reassessed after he was seen for anxiety in mental health clinic, “as headaches may improve without medication.”); b) A May 2011 VA psychiatric note (noting complaints of headaches and nightmares; also noting some avoidance behaviors regarding headaches; one of multiple VA outpatient mental health notes consistently discussing headaches in context of psychiatric treatment); c) A June 2011 VA TBI clinic note (noting Veteran had severe, daily headaches initially when he started Zoloft for anxiety, and that headaches have improved since then); d) An August 2012 VA psychiatric note (one of multiple VA outpatient mental health notes suggesting possible relationship between Veteran’s passive suicidal ideation and headaches); and e) An October 2012 VA TBI clinic note (regarding treatment plan for headaches, physician found that they sounded mostly like tension-type headaches; recommending that Veteran consistently take Zoloft for anxiety, continue with mental health clinic, and research ways to decrease stress). The need for an in-person and/or telephonic interview of the Veteran is left to the discretion of the examiner(s) selected to provide the requested opinion(s). A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement   of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, 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.