Citation Nr: 21000434 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-09 588A DATE: January 5, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to September 28, 2013, for the Veteran’s cervical spine degenerative disc disease (DDD) and in excess of 20 thereafter is remanded. Entitlement to service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from October 1988 to July 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Cervical Spine DDD In response to the Board’s May 2019 remand, the Veteran was provided an November 2019 addendum to his prior VA Neck examination. The VA examiner acknowledged that the Veteran experienced flare-ups but indicated that it would be mere speculation to opine on the effects of the Veteran’s flares as they were not directly observed. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court addressed the adequacy of “mere speculation” opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. As noted above, the November 2019 addendum opinion noted the Veteran’s report of flare-ups, however the detailed findings contemplated by the Sharp case have not been included. Migraines As part of the May 2019 remand the Board required the RO to obtain an addendum opinion regarding the etiology of the Veteran’s migraine disability. Specifically, the examiner was to address whether the Veteran’s migraines were etiologically related to his active duty service, caused by a service-connected disability, or aggravated beyond the course of its natural progression by a service-connected disability (specifically his neck and PTSD disabilities). In November 2019, the RO obtained an addendum opinion. The examiner noted that it was less likely than not (less than a 50 percent probability) that the Veteran’s migraine condition was related to his active duty service or aggravated by any of his service connected disabilities. However, the examiner provided no rationale for his opinion regarding aggravation, and additionally did not comment on whether the Veteran’s service-connected disabilities could have caused his migraines, not just whether they aggravated them. Further, the Board notes that in the December 2017 VA Headaches examination, the examiner found that the Veteran’s migraines did not pre-exist his service. However, in the November 2019 addendum the examiner noted that the Veteran had pre-existing headaches but did not indicate what evidence changed the examiner’s opinion on this matter. Based upon the above, the VA examiner did not adequately assess whether the Veteran’s diagnosed migraines were related to his active duty service and the Board finds that a new examination and opinion is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, with an examiner who has yet to examine the Veteran, to determine the current nature and severity of his cervical spine disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner should review this remand in its entirety, and the examiner should review the Veteran’s lay reports of his flare-ups and the clinical findings on examination and opine on the functional impact of the Veteran’s reported flare-ups. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Afford the Veteran a VA examination by an examiner, who has not previously examined him, with sufficient expertise to address the etiology of the Veteran’s claimed migraines. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the Veteran’s migraine disability at least as likely as not (a 50 percent probability or greater) originated during his period of active service to include as secondary to, or aggravated by, his PTSD or cervical spine disabilities. Regarding this opinion, the examiner must indicate whether the Veteran’s PTSD and cervical spine conditions (or treatment thereof, including medications taken) at least as likely as not caused or aggravated his migraines. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.