Citation Nr: 21000827 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 14-01 069 DATE: January 6, 2021 ORDER 1. Entitlement to service connection for a left knee condition is denied. 2. Entitlement to service connection for a right shoulder condition is denied. 3. Entitlement to an evaluation in excess of 20 percent for lumbosacral strain and degenerative disc disease from August 30, 2016 to August 13, 2020 is denied. 4. Entitlement to an evaluation in excess of 40 percent for lumbosacral strain and degenerative disc disease from August 13, 2020 is denied. REMANDED 1. Entitlement to service connection for migraine headaches is remanded. 2. Entitlement to total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The weight of competent and credible evidence is against finding that the Veteran’s left knee condition began during active service or is otherwise caused by an in-service injury or disease. 2. The weight of competent and credible evidence is against finding that the Veteran’s right shoulder condition began during active service or is otherwise caused by an in-service injury or disease. 3. Prior to August 13, 2020, the evidence of record does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 4. The evidence of record does not show unfavorable ankylosis of the entire thoracolumbar spine, nor does it show that the Veteran has intervertebral disc syndrome (IVDS) with incapacitating episodes that required bed rest prescribed by a physician. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2019). 2. The criteria for service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2019). 3. The criteria for a rating in excess of 20 percent, prior to August 13, 2020, for the Veteran’s back condition has not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. 4. The criteria for a rating in excess of 40 percent for the Veteran’s back condition has not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1993 to August 1995 and from November 2001 to September 2003, including service in Southwest Asia and with additional periods of Naval Reserve service from January 1995 to June 2008. The matters of a left knee condition and right shoulder condition come to the Board of Veterans’ Appeals (Board) from a July 2013 rating decision. In March 2018, the Board denied reopening the Veteran’s shoulder and knee claims. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In June 2019, the Court vacated the Board decision to deny reopening the Veteran’s knee and shoulder service connection claims and remanded the issues to the Board. The Veteran’s claims were reopened in February 2020 and remanded for adjudication by the RO, which was conducted in October 2020. The claims are now properly before the Board. The matter of an increased rating for a lumbar spine condition comes before the Board of Veterans’ Appeals (Board) on appeal from July 2013, December 2015, and April 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In June 2020 the Board issued remand directives for a new examination to be provided and the Board finds that there has been substantial compliance with remand directives. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weight its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Nevertheless, a veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also 38 C.F.R. § 3.159 (a)(2). Entitlement to service connection for a left knee condition The Veteran contends that he has a current left knee condition due to his naval service. The Board has conducted a thorough review of the Veteran’s service treatment records (STRs). The Veteran’s STRs do not show any complaint, treatment or diagnosis for a left knee disorder. Upon separation the Veteran stated in his May 2004 Report of Medical History that he did not have any knee trouble, to include locking, giving out, pain, ligament injury or any other condition relating to his knees. See August 2005 STR-Medical, p. 16. Post-service, the first indication of a left knee condition comes in the form of a May 2009 primary care nursing note, in which the Veteran reported knee pain. note stated: “left knee arthralgia – no specific injury, worsened with weight bearing.” See April 2012 CAPRI, p. 4. The record shows subsequent diagnosis of arthralgia, but no nexus opinions regarding the etiology of the Veteran’s disability. In April 2009 the Veteran submitted his initial claim of service connection for a left knee disability. This was denied in November 2009. and the decision became final, as the Veteran did not appeal within a year. The Veteran submitted a petition to reopen the claim in March 2012, which was granted due to the Veteran’s subsequent lay statements constituting new and material evidence. Specifically, the Veteran stated in May 2012: “My knee has been hurting for years and I feel the cause for that has been because of all the running and exercise’s I had to do throughout my career in the US Navy.” See May 2012 Correspondence. The Board found that the Veteran’s lay statements constituted new and material evidence, and as such the Veteran’s claim was reopened in February 2020 with a new examination ordered. See February 2020 BVA Decision. In a May 2009 new patient examination, a VA clinician noted the Veteran’s report of left knee pain without a history of a specific injury. He was advised to apply ice and lose weight. In a March 2011 state compensation insurance fund report, a physician noted that the Veteran had been working as a correction officer for the state when he sustained injuries to multiple parts of the body including the left knee in November 2009. The physician noted that the Veteran had slipped on a wet floor and sustained a contusion to the left knee. On examination, there was tenderness of the left knee. Follow-up in 2010 continued to show tenderness and mild patellar grind but no loss of range of motion, instability or laxity. In April 2010, the Veteran underwent an arthroscopic partial meniscectomy. As per Board remand orders, an examination was provided in October 2020. At the examination, the VA examiner found that the Veteran had a current left knee disability but opined that it was less likely than not incurrent in or caused by an in-service injury, illness or event. Specifically, the VA examiner stated: “Based on medical records reviewed, it is less likely than not that the patient has Left Knee Condition that was incurred in service… His separation physical in 08/1995 is negative for tricked/locked knee or pain, condition or injury. Of note, patient sustained multiple injuries while at work as a correctional officer in 2009 where he had injuries to his neck, back, and left knee. He had extensive exams over the subsequent 2 years. There is no evidence that the patient had any previous knee condition. On examination of the patient, he failed to mention that he had a workman's comp injury in 2009 to his left knee, and that the left knee surgery was due to this injury.” See October 2020 C&P Exam. The Board finds that the nexus opinion of the October 2020 VA examiner is of significant probative value, as the VA examiner conducted a medical examination, reviewed the Veteran’s medical records, considered his lay statements and provided a rationale supported by the record. Following this examination, the Veteran was provided an SSOC in October 2020, and therefore the claim is properly before the Board. In the present case, the Board acknowledges that the Veteran has a current disability and has testified as to an in-service injury. However, the record does not show a positive nexus opinion. Rather, the probative evidence of record shows a negative nexus opinion in the October 2020 VA examination provided to the Veteran. The benefit-of-the doubt doctrine is not for application, and the claim for service connection for a left knee disability must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for a right shoulder condition The Veteran contends that he has a current right shoulder condition due to his naval service. A review of the Veteran’s service treatment records (STRs) do not show any complaint, treatment or diagnosis of a right shoulder condition. The Board notes that the Veteran denied any shoulder pain in his September 1995, August 2000 and May 2004 Reports of Medical History. See August 2005 STR-Medical, pp. 10, 16, 18. Post service, the first indication of a right shoulder condition came in the form of the Veteran’s initial claim for benefits in August 2005. The first indication of the Veteran seeking medical treatment for his right shoulder comes from the Veteran’s private medical treatment records, which show a November 2009 civilian work related accident, in which the Veteran sustained an injury to his head, neck, upper back, lower back and left knee. See Medical Treatment Record – Non – Government, pp. 10, 24. The Veteran’s claim was denied in February 2006. As the Veteran did not appeal within a year the decision within one year it became final. The Veteran submitted a claim to reopen in April 2009, which was denied in November 2009. As the Veteran did not appeal within one year, the decision became final. The Veteran again petition to reopen in March 2012. As part of the Veteran’s claim, he submitted the following lay statement: “On June 2003 after doing regular PT exercises I felt some pain on my back which kept getting worse as time went by. I couldn’t take the pain anymore so I went to see the Dr. on base after he checked me out and evaluated me he said that I have tightness, deformities, swelling and redness on my back. He checked my back and said my spine looks normal but that I probably pulled a muscle on my shoulder and lower back and I had a muscle spasm. The only thing that they gave me for the pain was Motrin 800 mg that didn’t work. Ever since then I have had pain in my shoulder and back.” See May 2012 Correspondence. The RO denied reopening in July 2013. The Veteran submitted a timely notice of disagreement and perfected his appeal. The Board denied reopening, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2019 the Court found that the Board failed to provide an adequate statement of reasons and bases for its determination that new and material evidence had not been submitted. See June 2019 CAVC Decision, p. 36. The Board subsequently reopened the claim in February 2020 for adjudication by the AOJ. As per Board remand orders, an examination was provided in October 2020. At the examination, the VA examiner found that the Veteran had a current disability but opined that it was less likely than not incurrent in or caused by an in-service injury, illness or event. Specifically, the VA examiner stated: “Based on medical records reviewed, it is less likely than not that the patient has Bilateral Shoulder Condition that was incurred in service. There are no medical records available to show that patient suffered any shoulder condition, during service. His separation physical in 08/1995 is negative for shoulder pain, condition or injury. Of note, patient sustained multiple injuries while at work as a correctional officer in 2009 where he had injuries to his neck, back, and left knee. He had extensive exams over the subsequent 2 years. There is no evidence that the patient had any ongoing shoulder pain or injury.” See October 2020 C&P Exam. The Board finds that the nexus opinion of the October 2020 VA examiner is of significant probative value, as the VA examiner conducted a medical examination, reviewed the Veteran’s medical records, considered his lay statements and provided a rationale supported by the record. Following this examination, the Veteran was provided an SSOC in October 2020, and therefore the claim is properly before the Board. In the present case, the Board acknowledges that the Veteran has a current disability and has testified as to an in-service injury. However, the record does not show a positive nexus opinion. Rather, the probative evidence of record shows a negative nexus opinion in the October 2020 VA examination provided to the Veteran. The benefit-of-the doubt doctrine is not for application, and the claim for service connection for a right shoulder disability must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of another. 38 C.F.R. § 4.14 ; see also Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to provide evidence of symptoms observable by his senses. However, he is not competent to measure range of motion, as this requires specialized testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds the Veteran credible to report his symptoms, as his statements are detailed and consistent. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Disabilities of the low back are rated under section 4.71a for the musculoskeletal system. The Veteran’s back is rated under Diagnostic Code 5242, which applies the General Rating Formula for the Spine. 38 C.F.R. § 4.71a. Under the General Rating Formula for the Spine, a 20 percent evaluation is warranted where the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The criteria for a 50 percent rating are unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Entitlement to an evaluation in excess of 20 percent for lumbosacral strain and degenerative disc disease from August 30, 2016 to August 13, 2020 Entitlement to an evaluation in excess of 40 percent for lumbosacral strain and degenerative disc disease from August 13, 2020 The Veteran submitted a claim of service connection for a back condition in August 2005. This claim was denied in February 2006, and as the Veteran did not appeal within a year it became final. The Veteran submitted a claim to reopen in April 2009, which was denied in November 2009. The Veteran submitted another claim to reopen in March 2012, which was granted in July 2013, with a 10 percent rating provided with an effective date of March 7, 2012. The Veteran submitted a timely Notice of Disagreement (NOD) in July 2013 and perfected his appeal in January 2014. The Veteran was provided an SSOC in May 2014 and was denied an increased rating in July 2014. As the Veteran did not appeal within a year, the decision became final. In September 2016 the Veteran submitted a claim for an increased rating, stating that his back condition had worsened. See September 2016 VA 21-526b. In February 2017 the Veteran was provided a VA examination. There the examiner diagnosed the Veteran with chronic back strain with mild degenerative changes on imaging, with no radiculopathy. The Veteran did not report flare ups or functional loss. Upon examination flexion was to 50 degrees, 20 degrees extension, 20 degrees right lateral flexion, 25 degrees left lateral flexion, 30 degrees right lateral rotation and 30 degrees left lateral rotation. The examiner did not find that range of motion contributed to functional loss, though pain was exhibited on all range of motions. No evidence of pain was found with weight bearing nor did repetitive use cause functional loss, nor did pain, weakness, fatigability or incoordination. Neither muscle spasming nor guarding resulted in abnormal gait. No evidence was found of IVDS. See February 2017 C&P Exam. The Board found that a new examination was required as the February 2017 VA examination did not include range of motion testing for pain on both active and passive motion and in non-weight bearing, therefore remanding for a new examination. See March 2018 BVA Decision. Before an examination was provided the Board granted a 20 percent rating from August 30, 2016 in its December 2018 decision. In doing so, the Board acknowledged that while the Veteran’s lower back disability did meet the schedular requirements a 20 percent rating more nearly approximated the Veteran’s additional functional associated with his symptoms. See December 2018 BVA Decision, pp. 12-13. As this was not a full grant of benefits, the issue remained on appeal. As per the Board’s March 2018 remand instructions, a VA addendum opinion was provided in April 2019. There the VA physician wrote: “After examination of the Veteran, listening to their complete history and current subjective complaints, combined with a review of the available records, I have no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up.” See April 2019 C&P Exam. The Veteran wrote to the Board, arguing that the April 2019 opinion was inadequate. Specifically, that the VA physician “failed to provide a report or estimate of loss in terms of degree of additional functional loss…the examiner provided no information about the reason why they could not provide the Board with information about the additional functional loss due to flare-ups.” See April 2019 Third Party Correspondence. The Board subsequently issued a remand order for a new VA examination to be provided. See February 2020 BVA Decision. The new examination was provided in August 2020. A review of the record, prior to the August 2020 VA examination does not show any probative medical evidence indicating forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. As such, a rating in excess of 20 percent may not be granted. 38 C.F.R. § 4.71a. In August 2020 a VA examination was conducted. There, the VA examiner diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the spine, with worsening symptoms since his last examination. At the examination the Veteran described his symptoms as “constant shooting pain to his back that radiates to both upper legs, associated with back stiffness, spasm and numbness, tingling and burning sensation to bilateral extremities” without loss of bowel and bladder control. The Veteran further stated that flare ups occurred with prolonged sitting or lying on his back. Upon examination flexion was to 30 degrees, 10 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 25 degrees right lateral rotation and 30 degrees left lateral rotation. Repetitive use testing was conducted with no additional functional loss. Flare ups were described in terms of range of motion as flexion to 25 degrees, 5 degrees extension, 30 degrees right lateral flexion, 30 degrees left lateral flexion, 20 degrees right lateral rotation and 30 degrees left lateral rotation. Muscle spasming was noted that did not result in abnormal gait or abnormal spinal contour, and no guarding was found. Neither IVDS nor ankylosis was found. See August 2020 VA examination. In correspondence in December 2020, the Veteran’s representative contended that the did not have a copy of the August 2020 examination so that he could assess its sufficiency. Because the electronic claims file system shows that representative was granted access to the electronic claims file, a delay in adjudication is not warranted. Following the aforementioned examination, the Veteran was granted a 40 percent rating by the RO in September 2020. The question thus before the Board is whether a rating in excess of 40 percent is warranted including at an earlier date. The Board finds that an increased rating or earlier date is not warranted. In reaching this conclusion the Board has considered the Veteran’s medical treatment records, which show continual treatment of the Veteran’s back condition, but which do not include a diagnosis of ankylosis or IVDS with bed rest prescribed by a physician nor do clinical examinations show the lumbar spine in a fixed position. As the evidence of record does not show unfavorable ankylosis of the entire thoracolumbar spine or IVDS with bed rest prescribed by a physician and treatment by a physician in the past 12 months, the Board finds that a rating in excess of 40 percent is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt is not applicable. See U.S.C. §5107(b). REASONS FOR REMAND Entitlement to service connection for migraine headaches Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he suffers from a migraine headache condition due to his naval service. The Board has reviewed the Veteran’s service treatment records (STRs). In September 1995, August 2000 and May 2004 the Veteran stated that he did not suffer from frequent or severe headaches. See August 2005 STR-Medical, pp. 10, 16, 18. The Board has not uncovered any instances in service in which the Veteran complained of, received treatment for, or was diagnosed with, either headaches or migraines. Post-service, the first instance of the Veteran complaining of headaches came when he filed for service connection in August 2005. While the Veteran’s claim was denied and the denial became final, the Board notes that the Veteran’s claim was reopened by the Board in March 2018, and that the Veteran’s claim is properly before the Board once more. The first instance of the medical record showing the Veteran complain of headaches or migraines came after the Veteran slipped and fell at work and sustained a head injury in November 2009. See March 2011 Medical Treatment Record – Non – Government Facility, p. 1. The Veteran began complaining of headaches that began with neck pain. Id. The Veteran’s headaches were noted to be secondary to his closed head trauma in a November 2011 medical examination, conducted by a physician who had treated him since January 2010. See May 2012 Medical Treatment Record – Non – Government Facility, p. 28. The Veteran first stated that his headaches began in service when he claimed in July 2012, that his headaches began in 1995. See July 2013 CAPRI, p. 3. In contrast, a September 2015 letter from Dr. C.S. stated that the Veteran had “a long history of migraine headaches. Untreated sleep apnea causes migraine headaches.” See October 2015 Medical Treatment Records – Non – Government Facility. The Board notes that the private physician did not directly opine whether the Veteran’s migraine headaches were caused by his sleep apnea, and rather merely stated that it was a possibility. See October 2015 Medical Treatment Record – Non – Government Facility. The Board issued remand directives in March 2018 for the Veteran to receive a VA examination. As per the Board remand, an examination was provided in June 2018. At the examination the Veteran reported having minor headaches after prolonged exposure to severe heat in 2001, which the Veteran described as getting worse in 2006. The Veteran stated that his November 2009 accident aggravated these headaches. The VA examiner diagnosed the Veteran with migraines but opined that the migraines were less likely than not caused by his military service. Specifically, he stated: “This Veteran reports the onset of headaches that meet criteria for migraine in 2006 (3 years after he was released from active service). The minor headaches that he experienced in 2001 were related to heat exposure and do not meet criteria for migraine. His headaches become worse after head trauma in 2009 and it is likely that this trauma exacerbated (not caused) his migraines. In 2012 he was treated with Propranolol (one of the approved medications for migraine prophylaxis) and since then his migraines have been well-controlled. The current state of knowledge suggests that migraines are due to a primary neuronal dysfunction that leads to a sequence of changes in specific regions of the brain. Insomnia cannot cause this primary neuronal dysfunction; it can only exacerbate pre-existing migraines. Similarly, obstructive sleep apnea (OSA), even if untreated for many years, cannot cause this primary neuronal dysfunction, it too can only exacerbate pre-existing migraines.” See June 2018 C&P Exam. In summary, this Veteran does have migraines, but they started in 2006, 3 years after he was released from active service. His insomnia and OSA can exacerbate his migraines but are not the cause of his migraines. Therefore, this Veteran’s migraine headache was less likely than not (less than 50 percent probability) incurred in or caused by active service.” See June 2018 C&P Exam. Then, in September 2018, an addendum opinion was provided. There, the VA examiner stated: “It is clearly documented in the Veteran’s medical records that his migraine headaches were aggravated by a head injury in 2009. His headaches have remained more severe ever since that head injury, although they did improve (almost to the baseline level of 2006) after he was started on Propranolol (a medication to prevent migraines) in 2012. The Veteran’s service-connected obstructive sleep apnea (OSA) is of only mild severity and had been present and stable for years before the onset of his migraines, during the 3-year period of more severe migraines (due to head injury), and after this 3-year period to present. At no time do the medical records suggest that his OSA suddenly became worse in 2009 and then remained worse until 2012. In fact, he was first diagnosed with OSA (mild severity) in 2014. Therefore, this Veteran’s migraine headaches are less likely than not aggravated beyond natural progression by his service-connected OSA.” See September 2018 C&P Exam. The Board founds these opinions to be inadequate concerning direct service connection because the examiners did not consider the Veteran’s prior statement that his headaches began in 1995. As such, a remand was ordered in December 2018. See December 2018 BVA Decision. As per Board remand instructions, the Veteran was provided another VA examination in April 2019. Regarding direct service connection, the VA examiner opined: “Given the above, the STR’s do not reflect any ongoing treatment for headaches. This includes the separating examinations from 2001 and 2003. The examination for naval reserves in 2004 do not show treatment for headaches. There is no objective evidence of a diagnosis of migraine headaches until he was seen in neurology at the VA in San Diego in 2012 and started on propanolol is some inconsistency of when the veteran reported when the headaches started. According to the neurology consult in 2012, the pt reports headaches started in 1995. According to the comp and pen examination in June 2018 and on my examination, the pt reports the headaches started in 2001. My report of when the headaches started is consistent with the June 2018 comp and pen exam. Although there may be differences with the historical account of when the veteran reports headaches to various providers, the objective data show established treatment for headaches occurred after active duty service in 2012.” See #1 April 2019 C&P Exam. Regarding secondary service connection the VA examiner opined: “The pt veteran is claiming headaches secondary to the s/c sleep apnea. The medical literature does not support a causal relationship between sleep apnea and migraines headaches. The medical shows that migraines headaches are caused by a disorder of brain sensory processing that likely cycles influenced by genetics and environment.” See #2 April 2019 C&P Exam. The Veteran’s representative responded by sending to the Board a pair of medical articles regarding the connection between sleep apnea and migraines, along with the argument that the April 2019 VA examination was inadequate. The Veteran’s representative argued that it was in error for the VA examiner to find that the medical literature does not support a relationship between the two disabilities. See August 2019 Third Party Correspondence. The Board notes that neither the Veteran, nor his representative, have raised any arguments against the VA examiner’s findings concerning direct service connection. Further, service connection requires causation or aggravation and not comorbidity or a statistical relationship. Having considered the arguments put forth by the Veteran’s representative, the Board issued another remand order in February 2020 for a new examination. See February 2020 BVA Decision. In May 2020, a VA examiner offered a nexus opinion regarding direct service connection. Specifically, he opined: “no c/o persistent h/a. A 2018 comp and pen exam refers to heart related h/a w/o documentation. He claims he saw an eye doctor who gave him ibuprofen and took them. I can’t find this entry. Without evidence of a consistent history and also the fact that these h/a were provoked by extreme heat over 100 degrees F, there is not enough evidence for direct service causation.” See May 2020 C&P Exam. The May 2020 VA examiner did not opine on the issue of secondary service connection. Given that the February 2020 Board remand was predicated on the medical articles submitted by the Veteran concerning the medical connection between sleep apnea and migraine headaches, the Board finds that another remand is required. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. Entitlement to a TDIU The Board finds that the Veteran’s TDIU claim is inextricably intertwined with the Veteran’s claim of service connection for a migraine disability. As such, the Board may not adjudicate the Veteran’s claim based on the current record. Entitlement to service connection for TDIU is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination from an appropriate examiner to determine whether it is as likely as not that the Veteran’s migraine headaches are caused or aggravated by his service-connected sleep apnea. The record must be made available to the examiner for review, and the examiner should indicate that the record was reviewed in connection with the examination. All indicated tests and studies deemed necessary should be accomplished and the findings then reported in detail. The examiner must consider the Veteran’s lay statements and submitted medical articles. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 2. Then, readjudicate the issues of entitlement to service connection for migraine headaches and TDIU. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.