Citation Nr: 21001760 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 10-35 482 DATE: January 11, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1987 to April 1991, October 2003 to March 2005, and May 2006 to August 2007, to include service in the Southwest Asia Theater of Operations. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by a VA Regional Office (RO). By way of background, in July 2015 and July 2017, the Board of Veterans’ Appeals (Board) remanded the issues on appeal for additional development. In an April 2018 decision, the Board denied the issues on appeal and the Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In a July 2019 Joint Motion for Remand (Joint Motion), the parties agreed that VA failed to provide adequate reasons and bases. Specifically, the parties agreed that the Department of Veterans Affairs (VA) failed to address whether the evidence shows the Veteran’s headaches produce or are capable of producing severe economic inadaptability, and explain the standard used to assess whether headaches are very frequent. In a July 2019 Order the Court granted the Joint Motion and remanded the claim for action consistent with the terms of the Joint Motion. Pursuant to the July 2019 Order by the Court, the Board issued another decision once again denying a disability rating in excess of 30 percent for the Veteran’s migraine headaches. Again, the Veteran appealed the Board’s decision to the Court where a second Joint Motion was agreed to and ultimately ordered by the Court in September 2020. Specifically, the parties agreed that the Board again failed to address whether the Veteran’s headaches were capable of producing severe economic inadaptability and to address the evidence that his headaches occurred two or three times a month. The parties further agreed that the reasons and basis were inadequate for discussion of ameliorative effects of medication for it was found the Board erred by taking ameliorative effects into account when evaluating the Veteran’s disability when the diagnostic criteria does not specifically contemplate those effects. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Unfortunately, a remand is required once more in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). Entitlement to a disability rating in excess of 30 percent for migraine headaches is remanded. A remand of the Veteran’s claim for a disability rating in excess of 30 percent for migraine headaches is warranted to obtain outstanding treatment records and a new VA examination. In a December 2020 VA headaches examination, the examiner remarked that the Veteran had been evaluated by a neurologist and diagnosed with posttraumatic tension headaches in May 2020. The Veteran's claims file only contains treatment records referencing an MRI being scheduled and does not appear to contain the medical findings of this neurologist. It is unclear from the available record whether these are private or VA treatment records. On remand, the Veteran should be offered the opportunity to submit any such private records or submit an authorization for VA to obtain the records. Efforts should also be made by the VA to obtain any outstanding medical records, to include those of any neurologist. The Board also finds the VA examinations of record to either be inadequate or internally inconsistent therefore, a remand for a new VA examination is warranted. In the Veteran's June 2009 VA examination the examiner reported that the Veteran's headaches would not result in economic inadaptability only that there were interruptions in his activities, and in medical treatment notes from May and July 2010 show assessment of tension headaches and note that the Veteran reported that he was “actually doing okay with the headaches,” but still have them from time to time. It has been noted by the Board that the June 2009 examiner did not use the standard VA examination form and, as such, he did not indicate whether the Veteran’s headaches were productive of characteristic prostrating attacks. Nevertheless, the Veteran has competently reported that his headaches occurred three times a week and lasted for five hours each time, which the examiner indicated led to interruption in activities. Therefore, the probative value of the June 2009 VA examination is limited. The Veteran was afforded another VA headaches examination in December 2015. Here, the Veteran’s headaches were reported to occur at least three times a week and last for an hour or two. About 30 percent of the time, the Veteran experienced nausea, and during 20 percent of the time also had episodes of vomiting. Almost every headache attack led to stomach sickness. The VA examiner concluded that the Veteran had characteristic prostrating attacks of headache pain that occurred once a month. He went on to explain that “two to three times a month the Veteran suffers from characteristic prostrating attacks of pain that prevent the Veteran from doing work on that day”. Due to these statements, the Board finds the December 2015 VA examination to be internally inconsistent and contradictory. On one hand, the examiner opined that the Veteran had characteristic prostrating attacks of headache pain that occurred once a month. On the other, he also opined that the Veteran does in fact experience prostrating attacks two to three times a month that prevent the Veteran from doing work. These statements appear to contradict themselves and therefore, the Board finds a new VA examination is warranted. The Veteran was afforded yet another VA examination in December 2020 in conjunction with a separate claim for a traumatic brain injury (TBI) in which the examiner reported the Vet does not experience non-headache symptoms associated with headaches such as nausea, vomiting, sensitivity to light, sound, and changes in vision. No prostrating attacks of migraine/non-migraine headache pain and no functional impact were also reported by the examiner. The examiner further noted that the Veteran did not receive medical treatment for his headaches until 2019 when he was sent to neurology. However, this is incorrect for the Veteran had been sent for neurological consultations as early as May 2010. Furthermore, the Veteran has undergone multiple CT scans and MRIs throughout the years to determine the etiology of his migraine headaches to include TBI and a possible tumor. As such, the Board finds the medical opinions of the December 2020 examiner to be inadequate for adjudicative purposes. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). The Board further notes, the record contains reports of the Veteran needing to take medication to control his headache symptoms in order to work. The above-mentioned VA examinations include notations that the Veteran has taken over the counter as well as prescriptions medications to control this headache symptoms. These VA examiners however, did not discuss the Veteran’s symptomatology in the absence of the ameliorative effects of his medication. The ameliorative effects of the Veteran’s medication cannot be considered when assessing the level of severity and this specific medical evidence is needed to correctly identify the disability’s level of severity. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). (holding that the Board erred by taking ameliorative effects into account when evaluating a Veteran’s disability when the diagnostic criteria did not specifically contemplate those effects). In light of the above, a remand is warranted as there are suggestions of changes in the Veteran's headache disability, and since the prior VA examinations of record are deemed inadequate or internally inconsistent, a new VA examination is warranted to determine the current nature and severity of the Veteran's migraine headaches. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims. If the Veteran provides a signed authorization form, make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain any additional VA treatment records, to include any VA treatment records from May 2020 for a neurology consultation. If no records exist a note indicating as such should be placed in the claims file. 3. After outstanding records are obtained, to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner is asked to determine the current nature and severity of the Veteran’s service-connected migraine headaches. The entire claims file should be reviewed by the examiner and any appropriate tests conducted. The Veteran's symptomatology should be described, including those used in the rating criteria. Specifically, the examiner should indicate whether the Veteran’s migraine headaches are manifested by characteristic prostrating and prolonged attacks. The examiner should also provide an estimate as to the frequency and length of duration of any such attacks. The examiner should provide an opinion as to whether such attacks are productive of severe economic inadaptability. The examiner is reminded that the term “severe economic inadaptability” can mean either producing or capable of producing and the term does not require that the Veteran be completely unable to work. See Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The examiner should also offer an opinion as to the level of severity of the Veteran’s service-connected headache disability without the use of medication. In providing the above opinions, the examiner should take into account the fact that the Veteran is both competent and credible to report the observable symptoms of his migraine headaches even when the symptoms are not documented in his medical records. If the examiner cannot provide any of the requested opinions, the reasons for that should be explained, e.g., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies. (Continued on the next page)   4. After completing the above, readjudicate the claim on appeal. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, if appropriate, return the claim to the Board. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.