Citation Nr: 21003816 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-29 155 DATE: January 22, 2021 REMANDED Entitlement to service connection for a headache disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from December 1975 to July 1976, including additional reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The matter was previously before the Board most recently in August 2020, at which time the Board remanded the matter to the agency of original jurisdiction (AOJ) to obtain an addendum medical opinion. For the reasons discussed below, the Board finds that there has not been substantial compliance with the directives of the Board’s August 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a headache disorder is remanded. Although the additional delay is regrettable, the Board finds that another remand is required before the Veteran’s claim for service connection for a headache disorder can be properly adjudicated on its merits. The Veteran asserts that his headache disorder was caused by or aggravated by an in-service fall, trauma sustained from a physical altercation that occurred while on active duty service, and/or that his headache disability was caused by or aggravated by his service-connected tinnitus or status post fractured mandible. See, e.g., BVA Hearing Transcript, dated April 25, 2017; see also VA Form 21-4138, Statement in Support of Claim, dated February 15, 2014. Per the directives of the Board’s prior remand, the Veteran was afforded a medical examination to determine the nature and etiology of his headache disorder. The examiner noted that the Veteran’s diagnosis of tension headaches was not caused by or aggravated beyond its natural progression by his service-connected tinnitus. See VA examination dated September 28, 2020. In so finding, he reported that tension headaches are “considered to be due to dysfunction at the neuromuscular junction of the muscles of the head and neck, and are not impacted by tinnitus, which is due to loud noise exposure or cranial nerve […] dysfunction.” In the context of describing why the Veteran’s tinnitus did not aggravate his headache disorder, the examiner further relayed that “[t]he natural course of headache conditions is variable. They may be infrequent, stable with no change in frequency or duration, or may worsen, naturally.” However, these two statements regarding the origin of the Veteran’s headache condition are internally inconsistent in that the former statement attributes the Veteran’s headaches to neuromuscular dysfunction and the latter statement suggests that the cause of the Veteran’s headaches could be “variable.” The Board finds the rationale of the medical opinion to be inadequate; and as such, the Board affords the opinion no probative value. See, e.g., Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Furthermore, the examiner did not address the Veteran’s contention that his headache disability was caused by or aggravated by his service-connected jaw disorder. The Board must ensure compliance with the terms of its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand confers on the veteran, as a matter of law, the right to compliance with the remand orders). In the present case, the Board finds that there has not been substantial compliance with its August 2020 remand directives. Therefore, another remand is necessary in order to procure a medical opinion that not only adequately addresses all of the Veteran’s contentions concerning the relationship of his headache disability to either his military service or to his service-connected disabilities but that is also supported by a well-reasoned rationale. Accordingly, the matter is REMANDED for the following action: 1. Send the Veteran’s claims file to an appropriate clinician for review and for the opinions sought regarding the Veteran’s claim for service connection for a headache disorder. ONLY IF another examination is deemed necessary to answer the questions below, one should be scheduled. The clinician is asked to address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed tension headaches were incurred in or are otherwise etiologically related to his military service? Please explain why or why not, to include an explanation of the significance, if any, of the 1982 incident wherein the Veteran sustained an injury to his forehead during a physical altercation and the October 2002 report of medical history wherein the Veteran reported a history of frequent/severe headaches, treated by over-the-counter medication since the 1982 incident. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed tension headaches were caused by or aggravated beyond their natural progression by the Veteran’s service-connected tinnitus? Please explain why or why not, to include an explanation of the significance, if any, of the lay statements from the Veteran and his wife regarding the condition, including the “constant[,] high-pitched” noise experienced by the Veteran when he is trying to sleep, as relayed to the July 2013 VA examiner. (c.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed tension headaches were caused by or aggravated beyond their natural progression by the Veteran’s service-connected broken jaw, rated as status post fractured mandible? Please explain why or why not, to include an explanation of the significance, if any, of the Veteran’s contention that his headaches became worse and more frequent following the 1982 incident that caused his service-connected fractured mandible. It should be noted that the phrase “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided and that, in the clinician’s opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a “permanent worsening” of a nonservice-connected disability is not required to establish secondary service connection on the basis of aggravation. It should also be noted that lay persons are competent to attest to observable symptomatology. The examiner’s attention is directed to the statements of the Veteran and the Veteran’s wife concerning the in-service onset of the Veteran’s symptomatology and the continuity of symptomatology he has experienced since service. The clinician is reminded that an absence of prior medical documentation of symptoms or treatment is not, per se, a sufficient basis upon which to find the lack of an association between a current disability and an in-service event or injury. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.