Citation Nr: 21000696
Decision Date: 01/06/21	Archive Date: 01/06/21

DOCKET NO. 17-31 092
DATE: January 6, 2021

REMANDED

Entitlement to service connection for migraines is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

1. Migraines 

The Veteran received a VA examination in December 2014.  While the examiner considered the Veteran’s report of frequent headaches on his April 1970 separation examination, the negative nexus opinion was based on the length of time between service and documented complaints.  At his Board hearing and in his VA treatment records, the Veteran reported falling multiple times and being hit on the head while in service.  The Board finds that a new VA opinion is necessary that considers his lay statements. 

2. TDIU 

As noted in the prior remand, the issue of TDIU is inextricably intertwined with the Veteran’s migraine service connection claim.  Consequently, the outcome of that claim may impact the Veteran’s TDIU claim, including whether the schedular requirements for TDIU are met.  Thus, his TDIU claim must also be remanded. 

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for the prison that he was incarcerated in from September 1971 to December 1980.  If the necessary information is provided, attempt to obtain the records.  All negative responses should be documented, and the Veteran should be notified.

2. Provide the Veteran’s claims file to a suitable clinician so a supplemental opinion may be provided.  The entire claims file and a copy of this remand must be made available to the examiner for review.  A new physical or telehealth examination is only required if deemed necessary by the clinician.  

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s migraine began during active service or is related to an incident of service, or began within one year of separation from service. 

Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: 

a. December 2014 VA treatment records noting the Veteran’s fall during service where he was dazed and had memory issues

b. September 2019 Board testimony describing additional falls and hits to the head he received in service.

For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran’s lay statements are true.  If there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case.

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.

3. Then, readjudicate the service connection claim and the inextricably intertwined TDIU claim.  If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response.  Then return the case to the Board.  

 

D. Martz Ames

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	R. Brunot, 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.