Citation Nr: 21000481 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-52 649 DATE: January 5, 2021 REMANDED Entitlement to service connection for headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to March 1997. This claim comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2019, the Veteran and his wife appeared at a Board hearing and testified before the undersigned Veterans Law Judge. This appeal was remanded in January 2020 for additional development. It has since been returned to the Board for further appellate review. 1. Entitlement to service connection for headaches is remanded. Regarding each of the claims on appeal, remand is again necessary because the RO has not complied with the prior remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Factors for assessing the probative value of a medical opinion are the physician’s access to the medical record and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The January 2020 remand directed the RO to obtain a VA examination. The Board instructed the examiner to elicit from the Veteran a full history and/or description of his active service, including his proximity to explosions and exposure to gases. Also, the Board requested the examiner to opine whether the Veteran’s diagnosed headache disorder manifested in service, to include exposure to gases and explosions and to consider the Veteran’s hearing testimony and his lay statements. The Veteran received a VA examination in March 2020. The examiner provided a negative nexus opinion, explaining the examiner was unable to relate the gases and explosions he may have experienced in service (but not documented in military medical records) to his headaches. The examiner noted there were no entries for headaches in the Veteran’s service treatment records (STRs) expect for one entry on November 1996. The Board finds this rationale is not adequate as the examiner failed to consider the additional STRs of record noting headaches in-service, and the Veteran’s lay statements regarding the onset of and continuity of his symptoms during and post-service. Further, the examiner did not provide a reasoned explanation regarding if the Veteran’s headaches could be related to the Veteran’s proximity to explosions and exposures. Thus, remand is needed. In March 2020 VA received private treatment records from Dr. G.R. The clinician noted the Veteran had chronic daily headaches. The clinician, however, did not provide an etiology opinion or supporting rationale. Thus, this private treatment record is insufficient upon which to grant service connection. In June 2020 the RO sought clarification of the March 2020 VA opinion. The examiner opined that it is less likely than not that the Veteran’s military service contributed to his current migraine headaches, reasoning that the Veteran denied recurrent headaches at separation, and the first documented headaches occurred ten years post separation. First, the June 2020 examiner indicated that the Veteran’s lay statements could not be located; thus, the examiner failed to address the Veteran’s lay statements of onset and continuity of his symptoms during and post-service. During the October 2019 Board hearing, the Veteran testified that he experienced headaches during active duty and that they continued to get worse after service. The Veteran further testified that he did not seek treatment for headaches until they got very bad. Next, the examiner failed to opine if the Veteran’s headaches are related to exposure to gases and explosions. Also, the examiner further explained the Veteran’s current migraine headaches are not related to military service because the Veteran’s complaints of headaches in service were related to an upper respiratory tract infection (URIs), viral infection, and glasses. The Board finds this rationale is not adequate as the condition does not need to be the same; rather, if the incident was the precipitating event for the development of a later condition, service connection may be warranted. Notably, in a November 1991 STR optometry appointment, the Veteran complained of headaches for one to two weeks that he felt were associated with glasses. A June 1994 STR indicated the Veteran reported chronic or migraine headaches. In a June 1995 STR optometry examination, the Veteran reported headaches from glasses; however, the optometrist noted the Veteran had headaches from axes A and seemed to have referred the Veteran for treatment, but the optometrist did not indicate if in fact the Veteran’s headaches were associated with his glasses. Thus, the STRs do not conclusively indicate the Veteran’s headaches are related to his glasses, rather the Veteran’ “felt” it could be associated with his glasses. Accordingly, remand is required. Overall, there is no adequate medical opinion of record upon which the Board can rely to decide the claim, and remand is necessary to secure an adequate opinion on all theories of entitlement. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assist in determining the etiology of all headache disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must elicit from the Veteran a full history and/or description of his active service, including his proximity to explosions and exposure to gases. (a.) For each currently diagnosed headache disorder, the examiner must opine whether is it at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service, to include exposure to gases and explosions. The examiner must address the following: 1) the Veteran’s lay statements/testimony contained in the October 2019 Board hearing testimony describing in-service symptoms and post-service symptoms; 2) the October 2017 lay statement contained in the Veteran’s substantive appeal (Form 9) noting onset in service; 3) any relevant private treatment records, including records from Dr. G.R. received in March 2020; 4) the June 2020 VA addendum opinion; 5) the March 2020 VA examination report; 6) the June 2016 VA examination report; and 7) the Veteran’s STRs showing complaints of headaches in service. For the purposes of this examination and opinion, the examiner must presume as true the Veteran’s reported in-service exposure to gases/explosions and the lay statements of continuous symptoms since service are true. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2019). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Braxton, 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.