Citation Nr: 21003309 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-03 780 DATE: January 21, 2021 REMANDED Entitlement to service connection for migraine headaches, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for chronic fatigue syndrome (CFS), to include as secondary to service-connected disabilities is remanded. Entitlement to special monthly compensation (SMC) at the housebound rate based on the need for aid and attendance (A&A) is remanded. REASONS FOR REMAND The Veteran served in the Reserves from November 2001 to August 2005. In January 2019, the Veteran presented testimony before the undersigned Veterans Law Judge of the Board during a videoconference hearing. A copy of the transcript has been associated with the claims file. In June 2019 and June 2020, the Board remanded these claims to the Agency of Original Jurisdiction (AOJ). The Board sincerely apologizes for any additional delay in rendering a decision for these claims on appeal; however, to ensure the Veteran is afforded every opportunity to substantiate her claims, another remand is required. 1. Migraine Headaches The Veteran is seeking service connection for migraine headaches. Specifically, the Veteran stated that her headaches are due to or aggravated by her service-connected PTSD due to military sexual trauma (MST) in that that her physical problems arose as a result of injuries sustained during her assault. See January 2019 Hearing Transcript. She also submitted a statement that her tinnitus and headaches are concurrent. In the most recent June 2020 remand, the Board requested an opinion as to whether the Veteran’s headaches are secondary to her service-connected psychiatric disability or tinnitus. However, on remand, the September 2020 opinion from the VA examiner stated that there was no evidence that Veteran’s psychiatric disability or tinnitus permanently aggravated the diagnosed headaches disorder. As this is the incorrect legal standard in a secondary service connection claim, one which the Board specifically noted was not correct, the Board finds this opinion is inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 2. CFS The Veteran is seeking service connection for chronic fatigue syndrome that she asserts is due to or aggravated by her service connected PTSD due to military sexual trauma (MST). See January 2019 Hearing Transcript. In the most recent June 2020 remand, the Board requested an addendum opinion from the December 2019 VA examiner. At the time of the December 2019 VA examination, the VA examiner stated there was no diagnosis of CFS and, as such, no opinion rendered. However, the Veteran’s claims file includes an April 2011 private treatment record specifically noting a diagnosis of CFS. Thereafter, a February 2014 VA medical opinion also noted that the record contained a diagnosis of CFS. As such, in the June 2020 remand, the Board found the December 2019 VA examination inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). In the September 2020 addendum opinion, the VA examiner again stated there was no current diagnosis of CFS, noting that, while “there is mention of chronic fatigue in the Veteran's medical records, this simply indicates that the Veteran has had symptoms of fatigue. Chronic fatigue is a symptom and chronic fatigue syndrome is a diagnosis.” However, the VA examiner failed to provide an explanation as to why the previous diagnoses of CFS noted in the April 2011 private treatment record of the February 2014 VA examination report are either not correct or no longer accurate. As such, the Board finds that this addendum opinion is inadequate for rating purposes. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). A remand is required for an addendum opinion concerning the etiology of the diagnosed CFS. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). 3. SMC As any decision regarding the remanded claims could impact the outcome of the Veteran’s entitlement to SMC, this claim must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA or private treatment records, inclusive of all VA medical centers, dating from April 2020 to the present. 2. Obtain an addendum opinion from the December 2019 VA examiner who conducted the headaches examination and provided the September 2020 addendum opinion, if available. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner must specifically address the following: (a.) Provide an opinion as to whether it is “at least as likely as not (50 percent probability or greater)” that the Veteran’s migraine headache disability underwent any INCREMENTAL INCREASE in disability, regardless of its permanence, due to: (b.) the service-connected tinnitus or PTSD, or (c.) any other service-connected disability The examiner is reminded that permanent aggravation is not the correct standard when providing a medical opinion pertaining to secondary service connection. • The examiner must consider the Veteran’s lay statements regarding onset of symptomatology. • The examiner should also consider any other pertinent evidence of record, as appropriate. • All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. Obtain an addendum opinion from the December 2019 VA examiner who conducted the CFS examination and provided the September 2020 addendum opinion, if available. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner must specifically address the following: (a.) Determine whether the Veteran currently has a diagnosis of CFS. In so deciding, the VA examiner MUST comment on: 1. THE APRIL 2011 PRIVATE TREATMENT RECORD AND FEBRUARY 2014 VA EXAMINATION THAT FOUND A DIAGNOSIS OF CFS. (b.) If the examiner determines the Veteran does not have a diagnosis of CFS, sufficient medical explanation MUST be provided to explain the prior noted diagnoses and why they are no longer an accurate representation of the Veteran’s medical condition. (c.) If the examiner finds a diagnosis, then provide an opinion as to whether it is “at least as likely as not (50 percent probability or greater)” that the Veteran’s diagnosed CFS underwent any incremental increase in disability, regardless of its permanence, due to: 1. the service-connected PTSD, fibromyalgia, or 2. any other service-connected disability THE EXAMINER IS REMINDED THAT PERMANENT AGGRAVATION IS NOT THE CORRECT STANDARD WHEN PROVIDING A MEDICAL OPINION PERTAINING TO SECONDARY SERVICE CONNECTION. • The examiner must consider the Veteran’s lay statements regarding onset of symptomatology. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.