Citation Nr: 20053346 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 12-12 388 DATE: August 12, 2020 REMANDED Entitlement to service connection for an ear disability, to include earaches and infection, is remanded. Entitlement to service connection for headaches, to include migraines, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1986 to April 2006. These matters are on appeal from a June 2010 rating decision. The Board of Veterans’ Appeals (Board) previously remanded these matters in December 2014, June 2017, and February 2019. In the February 2019 decision, the Board remanded these matters to associate records with the Veteran’s file. The Board notes the Agency of Original Jurisdiction (AOJ) made sufficient efforts but was unable to obtain and associate with the claims file the medical records the Board requested in prior remands. The AOJ was informed by the medical facility in question that the records did not exist. Thus, the Board finds there has been substantial compliance with the previous remand directives. Entitlement to service connection for an ear disability, to include earaches and infection is remanded. Unfortunately, another remand is necessary to ensure the Board’s decision on the Veteran’s claim is fully informed. A recent development in case law requires the Board to revisit an aspect of the Veteran's claim that has not been subject to additional development in past remands. In Saunders v. Wilkie, the Federal Circuit held pain alone may constitute a disability, even without an identifiable underlying pathology, provided that such pain is productive of functional impairment in earning capacity. 886 F.3d 1356, 1368 (Fed. Cir. 2018). The December 2015 examiner opined that the Veteran’s ear condition was less likely than not incurred in or caused by an in-service event because the Veteran does not have a current diagnoses of chronic ear disease or aches, except his already service connected tinnitus and left ear hearing loss. However, the Veteran reported ear pain during active service and approximately once per month since. Additional development is therefore necessary to determine whether this pain constitutes a compensable disability pursuant to Saunders. 1. Entitlement to service connection for headaches, to include migraines is remanded. The Board finds the Veteran's December 2015 VA headache examination is inadequate to make an informed decision on his service connection claim for a headache disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (indicating VA has a duty to ensure any examination it provides is adequate). The examiner concluded it was less likely than not (less than 50% probability) that the Veteran’s headaches were incurred in or caused by an in-service event or injury, finding the Veteran did not have a headache disability. The Veteran, however, as a layperson, is competent to attest as to whether he has headaches. The examiner impermissibly dismissed any lay evidence of headaches and focused only on diagnosis and treatment. Moreover, the holding in Saunders is potentially applicable to this matter as well as headache pain, even without an underlying diagnosis, could potentially constitute a current disability for VA compensation purposes if it results in functional impairment in earning capacity. The Board is, therefore, without an adequate medical opinion to properly address the Veteran’s claim and a new medical opinion is necessary. The matters are REMANDED for the following action: 1. Send the claims file to an appropriate clinician to address whether the Veteran's earaches are related to his military service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner is also asked to address whether the Veteran’s reports of earaches during the appeal period (i.e. since March 2010) are productive of functional impairment. The examiner must be advised that it is not necessary for the pain to be attributed to a specific diagnosis to be considered a service-connected disability so long as the pain is productive of functional impairment. If the earache is productive of functional impairment, is it at least as likely as not (50 percent probability or greater) related to the ear pain noted in service? The claims file must be made available to and be reviewed by the examiner, with the Veteran only being scheduled for a new examination if deemed necessary by the selected examiner. 2. Send the claims file to an appropriate clinician to address whether the Veteran’s headaches are related to his military service. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner is also asked to address whether the Veteran’s reports of headaches during the appeal period (i.e. since March 2010) are productive of functional impairment. The examiner must be advised that it is not necessary for the headache pain to be attributed to a specific diagnosis to be considered a service-connected disability so long as the pain is productive of functional impairment. If the headache pain is productive of functional impairment, is it at least as likely as not (50 percent probability or greater) related to the Veteran’s military service? All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.